GLOBAL TERMS AND CONDITIONS OF PURCHASE
(For Purchase of Products)
THE FOLLOWING TERMS AND CONDITIONS SHALL GOVERN AND FORM THE BASIS OF THE AGREEMENT BETWEEN ICON AND THE PURCHASER IN CONNECTION WITH THE PURCHASE OF PRODUCTS BY THE PURCHASER FROM ICON PURSUANT TO ANY ORDER. TO THE EXTENT OF ANY CONFLICT BETWEEN THE TERMS OF THE ORDER AND THE TERMS AND CONDITIONS SET OUT HEREIN, THE TERMS AND CONDITIONS CONTAINED HEREIN SHALL PREVAIL.
ARTICLE 1 INTERPRETATION
1.1 Definitions. In addition to terms defined elsewhere in these Terms and Conditions of Purchase (“Terms and Conditions”), the following terms shall have the following meanings, unless the context otherwise requires.
(a) “Agreement” and “Terms and Conditions” shall mean this agreement, and any amendments to the foregoing;
(b) “Applicable Laws” mean with respect to a Person, property, transaction or event from time to time (including the supply of Products by Icon to the Purchaser pursuant to this Agreement and the use and operation of such Products by the Purchaser), means all applicable laws (including the common law and principles of equity), statutes, regulations, treaties, by laws, ordinances, judgments, decrees and (whether or not having the force of law) all applicable official directives, rules, consents, approvals, authorizations, guidelines, standards, codes of practice, orders (including judicial or administrative orders) and policies of any governmental authority having authority over, or application to, that Person, property, transaction or event, as the same may be amended from time to time during the Term;
(c) “Business Days” means Monday through Friday with the exception of statutory holidays;
(d) “Claims” means all liabilities (statutory or otherwise), obligations, claims (including direct or indirect claims), damages, penalties, demands, causes of actions, costs and expenses, Losses and injuries in any manner relating to or arising out of or with respect to the rental, purchase, transportation, operation or storage of the Products;
(e) “Force Majeure Event” means the occurrence of an act or event:
(i) which is beyond the reasonable control of the claiming Party;
(ii) which the claiming Party was unable to prevent, provide against, or avoid by the exercise of reasonable diligence;
(iii) which renders the claiming Party unable to fully or partially comply with its obligations hereunder; and
(iv) which is not caused by the action, omission, or negligence of the claiming Party;
provided however that lack of finances, insolvency or lack of availability of manpower, materials or equipment shall not in any circumstances constitute a Force Majeure Event;
(f) “Icon” means Icon Interiors Ltd., operating as Life Full of Love and Lemons;
(g) “including” means including but without limiting the generality of the foregoing, unless the context otherwise expressly provides such as “including only”, and “includes” shall have a corresponding meaning;
(h) “Intellectual Property” means, in respect of the Products, collectively, all intellectual property of whatsoever nature, kind or description, including:
(i) all trade-marks, trade-mark registrations or applications, common-law rights, rights under license agreements, trade names and other trade-mark rights;
(ii) all copyrights and copyright applications, including all manuals, brochures, computer software, logos, names, marketing documents and rights related thereto, including moral rights;
(iii) all inventions, industrial designs, design patents, utility models, patents, patent applications and patent rights (including any patents issuing on any patent application);
(iv) all other intellectual and industrial property, whether or not registrable or registered or the subject matter for applications or registrations;
(v) any and all records, documents and materials relating to the foregoing, including records of invention, original letters patent, copies of patent applications, log books, reports, files, agreements and assurances; and
(vi) the original of and copies of all such foregoing information and knowledge, however so recorded and maintained;
(i) “Losses” mean, with respect to any matter, all liabilities (statutory, contingent or otherwise), obligations, claims, losses, damages, costs and expenses of whatever kind or nature and howsoever arising including, whether directly or indirectly as a consequence of such matter, without limitation, loss of property value, loss of profit or revenue, loss of business, consequential and incidental damages and special damages;
(j) “Order” means the written request or verbal instructions to Icon, prepared by the Purchaser and in the form of a telephone order, online order or otherwise, to purchase Products;
(k) “Parties” shall mean Icon and the Purchaser and “Party” shall mean either of Icon or the Purchaser;
(l) “Person” means any individual, partnership, limited partnership, joint venture, syndicate, sole proprietorship, company or corporation with or without share capital, unincorporated association, trust, trustee, executor, administrator or other legal personal representative, regulatory body or agency, government or government authority, authority or entity however designated or constituted
(m) “Product(s)” means any items a Purchaser wishes to purchase from Icon; and
(n) “Purchaser” means the purchaser of the Products.
1.2 Currency and Payment
All sums due under this Agreement shall be paid in Canadian dollars, unless otherwise expressly indicated to the contrary, and shall be paid through the online payment service PayPal or in such other manner as may be specified by Icon from time to time.
The division of this Agreement into articles and sections and the insertion of headings are for the convenience of reference only and shall not affect the construction or interpretation of this Agreement. The terms “this Agreement”, “hereof”, “hereunder” and similar expressions refer to this Agreement and not to any particular Article or other portion thereof and include any agreement supplementary hereto. Unless something or subject matter or context is inconsistent thereof, references herein to Articles are to Articles of this Agreement.
In this Agreement, words importing the singular number only shall include the plural and vice versa. Words importing the masculine gender shall include the feminine and neuter genders and vice versa and words importing persons shall include individuals, partnerships, associations, trusts, unincorporated organizations and corporations, and vice versa.
ARTICLE 2 APPLICATION AND PRECEDENCE OF AGREEMENT
2.1 Entire Agreement
These Terms and Conditions, together with the applicable Order, contain the entire understanding of the Parties and supersedes all prior negotiations, representations or agreements, either written or oral, including without limitation any bids, proposals or other documents relating to the Products. There are no other promises, terms, conditions or obligations, oral or written, expressed or implied, other than those contained in this Agreement. To the extent of conflict between these Terms and Conditions and the terms of the Order, these Terms and Conditions shall prevail.
Each Order will be deemed to be an offer by the Purchaser to purchase Products subject to these Terms and Conditions and shall be deemed to be accepted by Icon upon either express acceptance of the offer or impliedly by fulfilling the Order, in whole or in part. Once issued by the Purchaser and accepted by Icon, each Order is incorporated into and forms part of this Agreement.
2.3 Amendments to Orders
No amendment to this Agreement or any Order shall be effective unless expressly agreed to in writing and signed by an authorized representative of Icon and the Purchaser. If any provision of the within terms and conditions of this Agreement are inconsistent with a provision of the Order, this Agreement shall prevail.
2.4 No Obligation to Order
The Parties understand and agree that this Agreement is for the purchase of Products as requested by the Purchaser through the issuance of an Order and that the Purchaser is under no obligation to issue an Order.
ARTICLE 3 ORDERS AND PURCHASE PRICE
3.1 Prices, Service Fees and Terms of Payment
The Purchaser will pay Icon the applicable purchase price(s) for the Products through PayPal. Payment will be processed as soon as practicable after Paypal releases payment to Icon. A confirmation email will be sent by Icon to the Purchaser to confirm payment has been received from PayPal.
3.2 Cancellation of Order by Purchaser
All Orders are final sale. The Purchaser shall not cancel any Order unless such cancellation is approved in writing by Icon. If this is the case, the Purchaser shall forthwith reimburse Icon for any costs incurred in association with the cancellation of such Order.
3.3 Other Charges
The Purchaser shall be responsible for any and all goods and services taxes, sales taxes, value added taxes, or any other taxes imposed by governmental authority with respect to the sale by Icon of the Products pursuant to this Agreement, whether characterized as goods and services taxes, sales taxes, and value added taxes or otherwise.
Icon shall ship the Products within five (5) Business Days of the payment being processed by Icon.
Products to be shipped outside of Edmonton will be shipped to the Purchaser via FedEx Shipping. Shipping within Edmonton will be hand delivered free of charge. Icon and the Purchaser will arrange for hand delivery within Edmonton.
Shipping within Canada will be conducted via ground shipping through FedEx Shipping and will be at the Purchaser’s expense.
All Product will be insured by the FedEx Shipping insurance policy, while it is in transit. Insurance is not provided by Icon. The cost associated with Fedex Shipping insurance will be included in the price of the Products.
ARTICLE 4 POSSESSION AND RISK
4.1 Possession by Purchaser
Upon taking of possession of the Product, the Product shall be deemed for all purposes hereof to have been accepted by the Purchaser as in good condition and running order on an ‘as-is, where-is’ basis. For the purposes of this Agreement, possession shall be deemed upon Icon releasing the Product to FedEx, or otherwise shipping the Product. The Purchaser acknowledges and agrees that the sale of the Product to the Purchaser is without any representation or warranty of any nature or kind, including, but not limited to, warranties and representations of fitness, merchantability, suitability for purpose and condition. The Purchaser acknowledges that the Product sold by Icon are unique products with various irregularities and that the items may not appear identical to those advertised. For no reason shall Icon be responsible or liable to the Purchaser or any third party for any economic, indirect, financial or consequential losses or damages of any nature whatsoever, howsoever caused, that may be suffered or sustained by the Purchaser or any third party in respect of the Product or its condition.
The Product shall be at the sole risk of the Purchaser and the Purchaser assumes the risk of liability and shall pay for any Losses or damage arising from or pertaining to the ownership, possession, operation or use of the Product or from any cause whatsoever and, without limiting the generality of the foregoing, liability or loss arising out of personal injury, death, fire, theft, loss, confiscation or expropriation. For no reason shall Icon be responsible or liable to the Purchaser or any third party for any economic, indirect, financial or consequential losses or damages of any nature whatsoever, howsoever caused, that may be suffered or sustained by the Purchaser or any third party in respect of the Product or the use, misuse, transport, storage and/or loss thereof by the Purchaser.
ARTICLE 5 USE AND COMPLIANCE
The Purchaser shall use and maintain the Product for its intended purpose and for no other purpose whatsoever.
The Purchaser, at its own cost and expense, shall comply with all applicable laws, ordinances, regulations and legislation any way relating to the ownership, possession, use, operation, repair, maintenance, servicing or transport of the Products.
ARTICLE 6 ASSUMPTION OF RISK AND INDEMNITY
6.1 Assumption of Risk
The Purchaser acknowledges and agrees that use and operation of the Product may involve risks, dangers and hazards to both person and property and the Purchaser hereby accepts and assumes all such risks, dangers and hazards, howsoever caused. Icon shall not be responsible or liable for any Losses resulting to the Purchaser, its agents, employees, contractors, subcontractors, directors, officers, assigns or successors or to any third party for any Claims.
The Purchaser hereby covenants and agrees to indemnify and save harmless Icon and, if applicable, its officers, directors, employees, agents and representatives from and against any and all Claims, actions, suits, proceedings, costs, expenses, Losses, damages and liabilities, including solicitors’ fees on a solicitor and own client full-indemnity basis, arising out of, connected with or resulting from the possession, use and operation of the Products by the Purchaser, including, without limitation, the following:
(a) Any injury, disability or death occasioned to or suffered by any person, including damage to any property arising from the transport, use, handling or operation of the Products;
(b) Any damage of any kind or nature whatsoever or howsoever arising to the Products;
(c) The failure by the Purchaser, its agents or employees to observe or perform any of its obligations pursuant to this Agreement; and
(d) Any Claim or proceeding made by any person with respect to the subject matter of this Agreement.
6.3 Indemnity Procedure
If the Purchaser has knowledge of or receives notice of any Claim or action or proceeding with respect to or arising from the transport, use or operation of the Products, the Purchaser shall promptly provide Icon with written notice thereof and provide all relevant information in respect of such Claim, action or proceeding. With respect to any such Claim, the Purchaser shall, at its own cost and expense, assume control of the defence of the Claim; provided, however, that the defence shall be through legal counsel acceptable to Icon, acting reasonably, and that no admission of liability and no settlement may be made by the Purchaser without first obtaining the written consent of Icon. If the Purchaser fails to assume the defence or settlement of any such Claim, action or proceeding in a manner acceptable to Icon and in any event, within fourteen (14) days of the Purchaser receiving notice of same, Icon may defend against or settle such Claim, action or proceeding and the Purchaser shall pay and indemnify Icon for any costs and Expenses, including solicitors’ fees, incurred by Icon in negotiating, contesting, settling or defending such Claim, action or proceeding.
ARTICLE 7 DATA PROTECTION
7.1 The Purchaser understands and agrees that their personal data may be collected by Icon and such data may be stored and used by Icon, where necessary, for the purpose and to the extent necessary in relation to this Agreement.
7.2 Icon shall not use the collected and stored personal data, collected from the Purchasers, for profit. No such data shall be sold or released to a third party by Icon.
7.3 The Purchaser understands and agrees that Icon will not be held responsible for any use or storage of the Purchaser’s personal data by third parties such as PayPal, Square Space or such other similar entities.
ARTICLE 8 PROPRIETARY RIGHTS NOTICE
8.1 The Purchaser agrees that the software, Intellectual Property and services (“Proprietary Products”) are proprietary products and that all right, title and interest in the Proprietary Products, including all associated intellectual property rights (including, but not limited to, patents, copyrights, trademarks, and trade secrets), are and shall at all times remain the property of Icon and are protected by Canadian and other copyright laws and international treaties. The Purchaser may not copy or distribute the Proprietary Products, electronically or otherwise, for any purpose. The Purchaser hereby grants to Icon a non-exclusive right to use all of the Purchaser’s data as necessary solely for the purposes of providing the Proprietary Products to the Purchaser.
8.2 The Purchaser may not, directly or indirectly, sublicense, assign, transfer, sell, rent, lend, lease or otherwise provide the Proprietary Products, or any portion thereof, to any third party and acknowledge that such action will materially damage Icon, and Icon may at its option, obtain such injunctive relief as may be necessary to protect its proprietary interest, seek damages, or be entitled to terminate the Agreement immediately. The Purchaser hereby agrees, represents, and warrants to Icon that the Purchaser will not access or use the Website for any purpose that is unlawful or prohibited by these Terms and Conditions.
ARTICLE 9 GENERAL PROVISIONS
9.1 Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of Province of Alberta. The Parties hereby irrevocably submit to the exclusive jurisdiction of the courts of the Province of Alberta and waive any objection based on venue or forum non conveniens with respect to any Claims arising under this Agreement and/or any Order or any related transactions between the Parties.
No waiver, modification or cancellation of any term or condition or of any breach of any term or condition of this Agreement shall excuse the performance of any act other than the act specifically referred to in such a waiver. No assent to or waiver of any breach of any one or more of the covenants and agreements herein contained, whether such assent or waiver be expressed or implied, shall be deemed to be taken to be a waiver of any succeeding or other breach. The various rights, revenues, powers, options and elections of the Parties hereto expressed or contained herein are cumulative, and no one of them shall be deemed to be exclusive of the others or of such other rights, revenues, powers, options or elections as are now or may hereafter be conferred upon the Parties by law.
9.3 Exclusions of Warranties
Neither of the Parties makes nor has made any warranties, inducements, promises or representations to the other respecting the subject matter of this Agreement, except as may be expressly stated in this Agreement.
9.4 Entire Agreement
This Agreement contains the entire agreement between Icon and the Purchaser with respect to the subject matter thereof as of its date and supersedes all other prior agreements, negotiations, representations and proposals, written or oral, relating to its subject matter.
9.5 Specific Performance/Injunctive Relief
Nothing herein contained shall bar either Icon’s or the Purchaser’s right to obtain specific performance of the provisions of this Agreement and injunctive relief against threatened conduct that will cause its loss or damages, under customary equity rules, including applicable rules for obtaining restraining orders and preliminary injunctions. The Purchaser and Icon agree that either Party may have injunctive relief, without bond, in addition to such further and other relief as may be available in equity or at law or otherwise provided for in this Agreement.
9.6 Rights of Parties are Cumulative
The rights of the Parties hereunder are cumulative. The exercise or enforcement by either Icon or the Purchaser of any right or remedy hereunder shall not preclude the exercise or endorsement by either the Purchaser or Icon of any other right or remedy hereunder or which Icon or the Purchaser is entitled by law to enforce.
9.7 Costs and Legal Fees
If a claim for amounts owed by the Purchaser to Icon is asserted in any legal proceeding before an arbitral tribunal, or if the Purchaser or Icon is required to enforce this Agreement in a legal proceeding, the Party prevailing in such proceedings shall be entitled to reimbursement of its costs and expenses, including reasonable accounting and legal fees, on a solicitor and client basis.
9.8 Time of Essence
Time shall be of the essence of this Agreement.
9.9 Counterpart Execution
By virtue of the Purchaser completing the transaction for the Products, this Agreement shall be deemed executed and shall be valid and binding on all parties to this Agreement.
9.10 Fees and Expenses
The Parties agree that all expenses incurred by or on behalf of the Parties, including fees and expenses of agents, solicitors and accountants employed by the Parties in connection with the authorization, preparation, execution and performance of this Agreement shall be born solely by the Party or Parties who have incurred same, unless otherwise specifically provided to the contrary in this Agreement.
9.11 Strict Compliance
Failure by either Party to insist upon strict compliance with any of the terms, covenants or conditions of this Agreement shall not be deemed to be a waiver of such term, covenant or condition, nor shall any waiver by any Party of any term, covenant or condition contained herein on any one (1) or more occasion be deemed to be a waiver of such term, covenant or condition with respect to the subsequent occurrence of any event unless such waiver specifically contains a provision to that effect.
9.12 Amending Procedure
This Agreement may be amended in writing from time to time upon the mutual agreement of the Purchaser and Icon, such amendments to be signed by the Parties (or their authorized corporate officers) hereto.
9.13 Contra Proferentum
The Parties expressly acknowledge and agree that they are of equal bargaining strength and agree that the doctrine of contra proferentum shall not apply to this Agreement.
9.14 Force Majeure
In the event of an inability or failure by Icon to manufacture or supply any of the Product herein by reason of any fire, explosion, war, riot, strike, walkout, labour controversy, flood, excess of water, shortage of water, excessive or unusual rain, power, labour or transportation difficulties of necessary materials or supplies, default or failure of carriers, breakdown in or loss of production or anticipated production from plant or equipment, act of God or public enemy, any law, act or order of any Court, board, government or other authority of jurisdiction, or any other direct cause (whether or not of the same character as the foregoing) out of the reasonable control of Icon, then Icon shall not be liable to the Purchaser during the period and to the extent of such inability or failure.
9.15 Binding Agreement
This Agreement shall be binding upon the Parties and their respective successors and permitted assigns.