Terms & Conditions of Sale
Aqua-Pak Industries Ltd.
Surrey, BC, Canada V3W 4M7
- COMPLETE TERMS. All sales by Aqua-Pak are governed by these terms and conditions of sale (“Terms“), together with other sales terms, if any, agreed to by the Buyer and Aqua-Pak in writing (“Sales Terms“), such as on written Sales Orders. In the event of an inconsistency between any Sales Terms and these Terms, the Sales Terms shall prevail. These Terms, together with the Sales Terms, if any, are referred to herein as the “Agreement”. This Agreement constitutes the entire agreement between the Buyer and Aqua-Pak regarding the sale of products (“Products“) by Aqua-Pak to the Buyer and sets out the final and complete expression of all terms and conditions of this Agreement. Any representations, promises, warranties, or statements that are not contained in this Agreement are void. If this Agreement is or is deemed to be an acceptance of a prior offer by Aqua-Pak or the Buyer, the acceptance is conditional on the Buyer’s acceptance of these Terms. Aqua-Pak hereby gives notice that it expressly rejects any terms or conditions contained in any document that has been, or may in the future be, supplied to it by the Buyer which are inconsistent with, or attempt to vary, any of this Agreement, whether such terms or conditions are set forth in the Buyer’s bid, proposal, order acknowledgement, purchase order, invoice or otherwise disclosed to Aqua-Pak. Aqua-Pak’s sale or delivery of any Products to the Buyer will not be construed as an acceptance of any terms or conditions contained in any document provided by the Buyer. Any action by the Buyer in furtherance of a sale or purchase of Products shall constitute acceptance of these Terms and this Agreement. These Terms can be modified, waived, or amended only in writing signed by an authorized representative of both the Buyer and Aqua-Pak.
- BUYER TO TEST FOOD PACKAGING PRODUCTS. The Buyer acknowledges that Aqua-Pak does not perform testing for compliance with any of the standards the Buyer may require including, but not limited to, suitability of Aqua-Pak’s food packaging products as listed with the Canadian Food Inspection Agency (collectively “Food Packaging Products“) for any specific applications such as “hot-fill”, handling, or transportation use. The Buyer shall perform its own testing to verify that the Food Packaging Products are suitable for the Buyer’s application. All Food Packaging Products are sold under the express condition that the Buyer has examined, evaluated and tested samples prior to the initial purchase to determine whether the Food Packaging Products: (i) meet the Buyer’s requirements; (ii) comply with all regulatory, compatibility and use requirements of the Buyer, including, but not limited to, compatibility of the Food Packaging Products with filled (hot or cold) or finished product; and (iii) are compatible with any other parties’ products and processes with which the Food Packaging Products are intended to fit or be used. All testing and evaluation required of the Buyer by this Section 2 shall be the Buyer’s sole and continuing responsibility.
The Buyer’s order for Food Packaging Products acts as confirmation and representation that the Buyer has performed such examination, evaluation and testing.
- WARRANTIES AND DISCLAIMERS. Aqua-Pak warrants it has and will convey good and marketable title to the Products and that:
- Food Packaging Products sold hereunder, at the time of shipment, shall be suitable for food contact service under the Consumer Packaging and Labelling Act (as it relates to food, as that term is defined in section 2 of the Food and Drugs Act), as amended, and all applicable regulations thereunder. Aqua-Pak’s Food Packaging Products are warranted to be free from defects in material and workmanship at the time sold by Aqua-Pak. Aqua-Pak’s sole obligation for alleged breach of warranty, breach of contract, strict liability, product liability, recall liability, negligence or other cause or theory is limited only to the replacement of the Food Packaging Products.
- Products manufactured by Aqua-Pak, except Food Packaging Products and Products intended for construction applications, (collectively “Other Products“) are warranted to be free from defects, materials and workmanship which cause the Other Products not to comply with their specifications as set forth in the written specifications for the Other Products existing at the time of the sale of the Other Products. This warranty extends only to the original purchasers of the Other Products and applies only if the Other Products are used, handled, stored, transported, and/or installed in accordance with applicable Aqua-Pak installation manuals, other applicable instructions or guidelines published by Aqua-Pak, if any, and applicable laws and regulations. This warranty is effective only, if Aqua-Pak receives written notice within 30 days after the first discovery of a defect but in no event later than 365 days after the date of shipment of the Other Products.
Aqua-Pak’s liability, and the warranty-claimant’s sole and exclusive remedy for alleged defects in the materials or manufacturing of Other Products, shall be limited to the replacement of an equivalent amount of allegedly defective Other Products, or a refund of the invoice price charged and paid for the allegedly defective Other Products, as Aqua-Pak may in its sole discretion elect.
IN NO EVENT SHALL THE BUYER BE ENTITLED TO RECOVER FROM AQUA-PAK, OR SHALL AQUA-PAK BE LIABLE FOR, ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR EXPENSES, including but not limited to (as applicable), loss of profits or anticipated profits, loss of use, damages, property damage, loss of value to structures, labour to replace allegedly defective Products or to reinstall conforming Products, injury to credit, reputation or goodwill, or recall campaign expenditures whether voluntarily initiated or otherwise (even if Aqua-Pak has been advised of the possibility or likelihood of such claim or damage), directly or indirectly resulting from any breach or alleged breach of the limited warranties provided in this Section 3, or for any claim that any of the Products delivered hereunder were defective or nonconforming. The Buyer accepts the Products solely on the basis of the applicable warranties hereinabove expressed. No other person or entity has any authority to bind or assume on behalf of Aqua-Pak any other liability, affirmation, undertaking, representation or warranty in connection with the sale or use of any of the Products except as stated herein. No further warranty is expressed or implied that is not specifically set forth herein.
EXCEPT AS STATED IN THIS SECTION 3 ABOVE, AQUA-PAK MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ABOUT ANY OF THE PRODUCTS. AQUA-PAK EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, THAT ANY PRODUCTS SOLD HEREUNDER ARE OF MERCHANTABLE QUALITY OR FIT FOR A PARTICULAR PURPOSE, THAT THEY WILL NOT SUPPORT MOLD, THAT THEY WILL NOT DISSOLVE, THAT THEY WILL NOT BURN OR MELT, THAT THEY WILL NOT CONTRACT OR EXPAND, OR THAT THEY WILL NOT EMIT ANY COMPOUNDS INCLUDING, WITHOUT LIMITATION, VOLATILE ORGANIC COMPOUNDS. AQUA-PAK DISCLAIMS ANY OTHER WARRANTY BASED ON STATUTE, REGULATORY PROVISION, COMMON LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, OR NOT EXPRESSLY PROVIDED FOR HEREIN. WITHOUT LIMITED THE FOREGOING, THE BUYER HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS WITH RESPECT TO ANY IMPLIED TERMS OR WARRANTIES UNDER THE PROVISIONS OF THE SALE OF GOODS ACT OR UNDER ANY STATUTE, REGULATION OR OTHER LAW OF SIMILAR EFFECT, WHETHER NOW OR HEREAFTER IN EFFECT.
THE LIMITED WARRANTIES PROVIDED BY AQUA-PAK IN SECTION 3(1) FOR ANY FOOD PACKAGING PRODUCTS ARE IMMEDIATELY AND AUTOMATICALLY INVALIDATED AND NULL AND VOID FOR ANY FOOD PACKAGING PRODUCTS THAT WOULD OTHERWISE COVERED BY THE AFOREMENTIONED WARRANTY IF THE FOOD PACKAGING PRODUCTS ARE AT ANY TIME, WITHOUT LIMITATION: (A) EXPOSED TO CONTAMINANTS, ELEMENTS OR TEMPERATURES BEYOND THE COMMON SERVICE TEMPERATURES INTENDED FOR SUCH FOOD PACKAGING PRODUCTS AND/OR ANY RAW MATERIALS CONTAINED THEREIN; (B) USED FOR APPLICATIONS NOT INTENDED FOR SUCH FOOD PACKAGING PRODUCTS, OR ANY REUSE SECONDARY TO THE INTENDED PURPOSE; OR (C) ALTERED OR TAMPERED WITH BY ANYONE.
Aqua-Pak makes no warranty, express or implied (including any warranty as to the workmanlike quality, merchantability or fitness for a particular purpose) with respect to any products, goods or systems not manufactured by Aqua-Pak, which warranties are hereby expressly disclaimed to the fullest extent allowed by applicable law. The Buyer shall be limited to the warranties (if any) of the respective manufacturers of the products or of the goods or systems sold.
The foregoing is the complete and exclusive statement of the terms of warranty of Aqua-Pak for the Products. In the event the remedies set forth herein should be found to have failed their essential purposes or are otherwise found to be unenforceable, in no event shall Aqua-Pak’s liability, nor shall a claimant’s damages, exceed the actual purchase price paid for the Products.
- RELEASE AND INDEMNIFICATION. THE BUYER HEREBY RELEASES AND AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS Aqua-Pak, Aqua-Pak’s affiliates and each of their respective directors, officers, employees and agents (collectively, the “Aqua-Pak Parties“) FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, SUITS, DEMANDS, ACTIONS, CAUSES OF ACTION, LIABILITIES, PENALTIES, COSTS, EXPENSES (INCLUDING ANYONE’S LEGAL FEES AND DISBURSEMENTS), JUDGMENTS AND DAMAGES OF ANY NATURE OR KIND WHATSOEVER, whether under contract, tort or any other theory of law or equity (collectively, the “Claims“) that the Buyer or its customers may have against any of the Aqua-Pak Parties or that any of the Aqua-Pak Parties may sustain, suffer, incur or be required to pay that arises or accrues from, as a result of, in relation to, or in connection with, (i) death, bodily injury, personal injury or property damages arising out of the Buyer’s or others’ marketing, advertising, sale, distribution, processing, discharge, storage, handling, transportation or use of any of the Products (including, but without limitation, fire or contamination caused or contributed to by storage, handling, transportation or use of any of the Products, and any claims or causes of action based on items for which or with which the Products are used) except to the extent caused solely by Aqua-Pak’s gross negligence; (ii) the Buyer’s violation of or failure to comply with any applicable law, regulation or standard in the marketing, advertising, labeling (or improper or inadequate labeling), sale, distribution or use of any of the Products or items with which or for which the Products are used; (iii) any alleged patent, trademark, trade dress, copyright, trade secret or other intellectual property infringement based upon the Buyer’s specifications; and (iv) any failure of the Buyer to examine, evaluate and test Food Packaging Products as required by Section 2 herein.
- ORDERS / ORDER CHANGES. Orders for Products will be submitted by the Buyer to Aqua-Pak in writing and in English using Aqua-Pak’s then current specifications for the Products. An order once placed by the Buyer cannot be changed or cancelled by the Buyer except with the approval of Aqua-Pak, which approval will not be unreasonably withheld, and, in the case of cancellation, only if cancellation can be effected without material cost to Aqua-Pak, however, a minimum change order fee of $75 applies to and is payable by the Buyer to Aqua-Pak for all order changes and cancellations. The Buyer will also pay any additional costs to Aqua-Pak in excess of the minimum change order fee for any such order changes and cancellations.
- TERMS OF PAYMENT. The price for Products is the price in effect on the date of shipment, unless otherwise agreed to by the Buyer and Aqua-Pak in writing. Aqua-Pak may adjust the price of any Products without notice unless otherwise agreed to by the Buyer and Aqua-Pak in writing. Payment is due according to the terms set forth on the invoice issued by Aqua-Pak, unless the parties agree to other terms in writing (and if the invoice issued by Aqua-Pak does not contain the terms of payment and the parties have not agreed to other terms in writing, payment is due upon receipt of the invoice). If the Buyer fails to pay any sum owed hereunder when due, interest shall accrue and be payable by the Buyer to Aqua-Pak on such sum at the rate of 1.5% per month or the highest rate allowed by law, whichever is lower. If Aqua-Pak, in its sole discretion, finds it necessary to employ an agent or attorney to collect any past due sum owed hereunder, it may collect, in addition to any other sum owed hereunder, reasonable agent’s or attorney’s costs (including fees, disbursements and taxes).
- FINANCIAL RESPONSIBILITY. Any credit terms offered by Aqua-Pak are available only for so long as the Buyer complies with all of its obligations under this Agreement, including, without limitation, the provisions requiring timely payment of invoices within the required time. If credit terms are no longer available, the Buyer shall pay cash in advance for all purchases. If Aqua-Pak has any doubt at any time as to the Buyer’s financial situation, Aqua-Pak, at its option, may either (a) decline to make further shipments except upon receipt of cash in advance or upon giving of other security satisfactory to Aqua-Pak, or (b) terminate this sale. Nothing in this paragraph is intended to affect the obligation of the Buyer to accept and pay for the Products.
- SECURITY INTEREST. The Buyer hereby grants to Aqua-Pak a continuing security interest in all Products purchased by the Buyer at any time and from time to time as security for the payment of all amounts owed by the Buyer to Aqua-Pak pursuant to this Agreement. The Buyer waives the right to receive any financing statement, financing change statement or verification statement relating to the foregoing security interest, and acknowledges receipt of a copy of the Agreement. The provisions of this Section 8 are of the essence of this sale.
- NO DEDUCTION. The Buyer shall not be entitled to deduct from the price invoiced to it by Aqua-Pak the amount of any claim asserted by the Buyer against Aqua-Pak, unless such claim has been allowed, in writing, by Aqua-Pak. The provisions of the preceding sentence are of the essence of this sale.
- TAXES. All sales, excise, or other forms of taxes and duties levied against this transaction shall be paid by the Buyer over and above all other sums the Buyer may be or may become obligated to pay hereunder.
- RISK OF LOSS. Unless otherwise provided in this Agreement, risk of loss of Products shall transfer to the Buyer at Aqua-Pak’s or the original manufacturer’s plant at which the Products are manufactured when the Products have been loaded onto the carrier taking delivery of the Products, regardless of whether the Buyer or Aqua-Pak is arranging for the transportation of the Products. In addition, unless otherwise provided in this Agreement, title to Products shall transfer to the Buyer simultaneously with risk of loss.
- DELIVERY. Unless otherwise agreed in writing by the parties, the Buyer will arrange for transportation of the Products from Aqua-Pak’s or the original manufacturer’s plant at which the Products are manufactured and Aqua-Pak will load the Products onto a suitable carrier arranged by the Buyer at that location. If the parties have agreed in writing that Aqua-Pak will arrange for transportation of the Products from Aqua-Pak’s or the original manufacturer’s plant at which the Products are manufactured to the destination required by the Buyer, then: (a) the delivery dates are approximate and subject to carrier availability, (b) Aqua-Pak reserves the right to route all shipments and may assist the Buyer in processing claims against carriers, without incurring liability therefore, (c) the Buyer agrees to be responsible for timely offloading of Products at their destination (typically two hours for a truckload), and any costs payable for any delay in the timely offloading of Products by the Buyer shall be for the Buyer’s account, (d) any increase in delivery costs resulting from the Buyer’s inaccurate or revised delivery address or instructions to Aqua-Pak or to the carrier, and any extra costs of utilizing substitute methods of delivery or off-loading, including when the intended type of carrier or loading or unloading facilities become unavailable, shall be for the Buyer’s account, (e) any claims for loss or damage after risk of loss has passed shall be filed by the Buyer with the carrier, (f) Aqua-Pak shall not be liable for loss or damage from delay in delivery or failure to manufacture, (g) if delivery is delayed at the request of, or due to acts or omissions by the Buyer, Aqua-Pak shall have the right to store the Products at a place of its own choice for the Buyer’s account and risk and to invoice the Buyer in accordance with the original invoicing and payment terms and for such storage charges incurred as a result of the delay.
- INSPECTION AND ACCEPTANCE: The Buyer shall, upon delivery of Products to the destination at which they are unloaded from the carrier that is transporting the Products from Aqua-Pak’s or the original manufacturer’s plant, immediately count and inspect and either accept or reject such Products within a reasonable period not to exceed ten (10) business days after delivery (the “Acceptance Period“). In the event that Products do not comply with the requirements under this Agreement, the Buyer shall promptly notify Aqua-Pak and provide a specific written explanation of the basis for rejection. The Buyer shall be deemed to have accepted any Products delivered hereunder and to have waived any right to reject in the event that Aqua-Pak does not receive such notice of rejection within the Acceptance Period. Aqua-Pak shall be afforded a reasonable opportunity to repair or replace non-conforming Products at Aqua-Pak’s option, provided that, if Aqua-Pak reasonably determines that the Products complied with the requirements under this Agreement when the Products were loaded onto the carrier taking delivery of the Products, then all expenses related to the improper rejection are the responsibility of the Buyer.
- RETURNS OF PRODUCTS. Food Packaging Products, Other Products, and custom-made Products CAN NOT be returned. Other Third-party Products may be returned within 30 days after receipt and must be in 100% resalable condition and such returns must be authorized by Aqua-Pak prior to being returned. All authorized returns of other Products are subject to a 25% restocking fee plus return freight.
- PRODUCT PROTECTION. To prevent damage to and contamination of Products, the Buyer shall protect all Products from physical damage, moisture, contaminants, and ultraviolet light exposure according to industry requirements and standards during transit, storage, and use.
- RESALE OF PRODUCTS. If the Buyer is reselling any Products, the Buyer agrees to furnish its purchasers copies of these Terms and incorporate these Terms in the Buyer’s sales order and invoice forms, and Aqua-Pak agrees to make copies available upon request. In all events and regardless of whether the Buyer complies with this provision, the rights of such purchasers shall be determined under the provisions of this Agreement.
- DELAYS/FORCE MAJEURE. In the event Aqua-Pak is unable to ship the ordered Products because of fire, flood, windstorm, or other act of God, labor or civil disturbance, shortage of raw materials, failure of timely delivery by Aqua-Pak’s suppliers, energy or transportation shortages, or any other cause whether or not similar to the causes listed above, beyond Aqua-Pak’s reasonable control, Aqua-Pak reserves the right to cancel the affected order without any liability to the Buyer whatsoever. In no event shall Aqua-Pak be obligated to purchase material from others to enable Aqua-Pak to deliver Products to the Buyer hereunder.
- COMPLIANCE WITH LAWS. The Buyer hereby assumes full liability and responsibility for compliance with all applicable laws, statutes, codes, ordinances and regulations of any governmental authority including, without limitation, any relating to occupational health and safety, any locally applicable food safety laws and regulations, and Canadian and United States export control laws. The Buyer shall not resell or ship to persons on the denied parties list or persons located within embargoed countries (in both cases as defined under the applicable export control laws). Aqua-Pak assumes no liability for the Buyer’s failure to comply with the Buyer’s obligations arising under European Union REACH (Registration, Evaluation, Authorization, and Restriction of Chemicals) Regulations.
- BREACH; TERMINATION. If the Buyer breaches any term of this Agreement or any other contractual obligation in favor of Aqua-Pak, (a) Aqua-Pak may choose to defer any or all further shipments or other performance under this Agreement and performance of any other contractual obligation in favor of the Buyer until the Buyer cures its breach, or (b) Aqua-Pak may immediately terminate this Agreement, if the Buyer fails to cure such breach within ten (10) days after receipt of written notice from Aqua-Pak describing such breach. In the event of a termination, all outstanding payment obligations or other indebtedness of the Buyer to Aqua-Pak shall be due and payable no later than fifteen (15) days after delivery of notice of termination. Acceptance by Aqua-Pak of less than the full amount due shall not be a waiver of any of Aqua-Pak’s rights under this Agreement or applicable law. In any event, the Buyer shall remain liable for all loss and damage sustained by Aqua-Pak because of the Buyer’s breach.
Notwithstanding any provision in this Agreement, Aqua-Pak shall have no obligation to pay any rebate, issue any credit or make any other payment of any kind to the Buyer unless the Buyer is fully in compliance with its payment and other obligations under this Agreement and any other contractual obligation in favor of Aqua-Pak. In addition, in the event that the Buyer fails to make any payment when due, Aqua-Pak shall have the right to offset any and all outstanding payment obligations or other indebtedness of the Buyer to Aqua-Pak against any outstanding payment obligations or other indebtedness that Aqua-Pak or any of its affiliates may owe the Buyer.
- ASSIGNMENT / ENUREMENT. Neither party to this Agreement shall assign this Agreement or any portion thereof without the advance, written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the forgoing, either party may assign this Agreement in the event of a merger, consolidation or reorganization or in connection with the sale of all or substantially all of the assets of the business of the party to which this Agreement relates. This Agreement shall enure to the benefit of and shall be binding upon the parties and their respective successors and permitted assigns.
- SEVERABILITY. If any provision of this Agreement is held invalid or unenforceable in accordance with its express terms in any legal proceeding in any jurisdiction, it shall, as only to that jurisdiction, be separate, severable and distinct from each and every other obligation or duty and shall not affect the validity and enforceability of any other part of this Agreement.
- NO WAIVER. Failure or delay of Aqua-Pak to exercise a right or power under this Agreement shall not operate as a waiver thereof, nor shall any single or partial exercise of a right or power preclude any other future exercise thereof.
- REFERENCES. References to the singular or masculine used in this Agreement will be deemed to include references to the plural, feminine or body corporate as the context may require.
- CONSTRUCTION. The division of this Agreement into sections and the insertion of headings are for convenience of reference only and are not to affect the construction or interpretation of this Agreement.
- NO PARTNERSHIP. The Buyer and Aqua-Pak are independent contractors and nothing in this Agreement constitutes either party to this Agreement as an agent, partner or joint venturer of or with the other party to this Agreement.
- GOVERNING LAW. Any transaction subject to this Agreement shall be construed and governed in all respects by the laws of the province of British Columbia, Canada (without regard to its conflicts of law rules). The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
- WAIVER OF JURY TRIAL / BINDING ARBITRATION. The Buyer hereby waives all rights to a trial by jury. The Buyer agrees that all disputes arising out of or relating to this Agreement shall be settled finally by arbitration under the Rules of the British Columbia International Commercial Arbitration Centre (“BCICAC“). The arbitration will take place before one arbitrator appointed in accordance with the BCICAC Rules. The place of arbitration shall be in the City of Vancouver, British Columbia. Any hearings shall be conducted in Vancouver, British Columbia, and will be conducted in English. Except for travel and lodging expenses, which will be borne by each party separately, any and all costs of arbitration and any and all lawyer’s fees will be borne by the Buyer and/or Aqua-Pak as determined by the arbitrator depending on the arbitration’s outcome.
- GENERAL. These Terms, as published on Aqua-Pak’s website located at www.aquapak.com/terms at the time of sale, are the official terms and conditions of sale between Aqua-Pak and the Buyer and may be amended from time to time without notice at Aqua-Pak’s sole discretion.
Last updated: 2017-11-13