DEFINITIONS, ATTACHMENTS AND APPLICABILITY
Definitions for capitalized terms used but not otherwise defined in these Client Engagement Terms are set forth in the Definitions Glossary
These Client Engagement Terms shall have effect and shall apply to Client and LLS at all times the Agreement is in effect.
ENGAGEMENT OF LLS
2.1 Engagement of LLS.
- LLS hereby grants Client a non-exclusive, non-transferable right to access and use the website during the Term.
- LLS shall provide the website Services to Client through the website.
- From time to time, LLS may make available additional services to Client that are not within the scope of the website Services (the “Additional Services”). Prior to the provision of any Additional Services, LLS and Client shall enter into a separate or supplemental agreement (or Schedule) in writing setting forth the details of the Additional Services and the fees in respect thereof.
ACCESS TO AND USE OF WEBSITE
3.1 Access to website.
- Client shall, via the Client Intake Form, notify LLS in writing of the names of all Client’s representatives who Client proposes to be permitted access to and use of the website.
- Client may propose any representative of Client or any of Client’s Affiliates for access to the website under the Agreement, provided however that Client may not propose a representative of a Client’s Affiliate if such Affiliate is a separate Licensed Business. For clarity, such Affiliate must execute a separate Agreement to allow access to the website for such Affiliate’s representatives.
- LLS reserves the right at its sole and absolute discretion to refuse access to the website by any of Client’s representatives.
- LLS will provide Client with password protected access to the website for those of Client’s representatives who are approved by LLS (each, a “Client User”). All Client Users shall be at least the age of majority in the Province of residence of the Client User and shall comply with Applicable Law and the terms of the Agreement. Client is responsible for all acts and omissions of Client Users, and any act or omission by a Client User that would constitute a breach of this Agreement if taken by Client will be deemed a breach of this Agreement by Client. Client shall use reasonable commercial efforts to make all Client Users aware of this Agreement’s provisions as applicable to such Client User’s use of the website, and shall cause Client Users to comply with such provisions.
- Client shall be solely responsible to ensure the security and confidentiality of all Client User passwords, and to ensure that only Client Users have access to the website. In the event Client learns that the security of a Client User password is compromised, or that an unauthorized Person has accessed the website through Client’s point of access, Client shall immediately notify LLS in writing.
- Client may access the website for the sole purpose of using the website to enter into Transactions and receive the website Services offered by LLS.
- Client acknowledges and agrees that it will not use proprietary information (including Confidential Information), Posted Terms, web content, or LLS IP in any way whatsoever except in accordance with the terms of the Agreement. The download, retention, use, publication, copying, or redistribution by Client of any such proprietary information (including Confidential Information), Posted Terms, web contain and LLS IP is strictly prohibited, and Client does not acquire ownership rights to any proprietary information (including Confidential Information), Posted Terms, web content, LLS IP or other materials viewed, posted, or accessed through the website.
- LLS reserves all rights not expressly granted to Client in the Agreement. Except for the limited rights and licenses expressly granted under the Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any Intellectual Property rights or other right, title, or interest in or to the LLS IP.
- Subject to the terms and conditions contained in these Client Engagement Terms, LLS hereby grants to Client a non-exclusive, non-sublicensable, non-transferable license to use the LLS Documentation during the Term solely for Client’s internal business purposes in connection with its use of the website Services and completion of Transactions.
- Client shall not use the website Services (or any Additional Services) for any purposes beyond the scope of the access granted in these Client Engagement Terms.
- Notwithstanding anything to the contrary in these Client Engagement Terms, LLS may monitor Client’s use of the website, the website Services (and any Additional Services) and collect and compile Aggregated Statistics. As between LLS and Client, all right, title, and interest in Aggregated Statistics, and all Intellectual Property rights therein, belong to and are retained solely by LLS. Client acknowledges that LLS may compile Aggregated Statistics based on Client Data input into the website Services (including Additional Services). Client agrees that LLS may:
- make Aggregated Statistics publicly available in compliance with Applicable Law; and
- use Aggregated Statistics to the extent and in the manner permitted under Applicable Law; provided that such Aggregated Statistics do not identify Client or Client’s Confidential Information.
Client shall not, without the express written consent of LLS, delegate or assign performance of Client’s activities on the website to any Person that is not a Client User.
3.3 Acceptable Use of website.
- post or transmit any material which:
- violates or infringes in any way upon the rights of any other Person;
- is unlawful, threatening, abusive, defamatory, hurtful, invasive of privacy or publicity rights, vulgar, obscene, hateful, profane or otherwise objectionable; or
- contains or links to software viruses or any other computer code, files or programs designed to (or that operates to) interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or otherwise interfere with or disrupt the website or its order processing system;
- use or attempt to use another website Member’s account, content or personal information, or impersonate another website Member;
- rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the website Services (or any Additional Services) or LLS Documentation or any part of the website;
- remove, circumvent, disable, damage or otherwise interfere with any access control or security-related features of the website or any third-party account related to the website;
- advertise or perform any commercial solicitation, including, but not limited to, the solicitation of other website Members;
- copy, modify, or create derivative works of the website Services or LLS Documentation, in whole or in part;
- reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the website Services (or any Additional Services), in whole or in part;
- engage in practices such as “screen scraping”, “database scraping” or “automated form filling” to retrieve, test or obtain lists of website Members, Transactions, or other information generated or processed by or stored via the website or any account related thereto;
- remove any proprietary notices from the website Services (or any Additional Services) or LLS Documentation; or
- use the website Services (or any Additional Services) or LLS Documentation or any part of the website in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property right or other right of any Person, or that violates any Applicable Law.
3.4 Rights to Restrict or Suspend Access to website.
- Notwithstanding any other provision of the Agreement, LLS shall at all times have the right to suspend (the “Service Suspension”) Client’s or any Client User’s participation in the website or otherwise alter, restrict, or prohibit access to the website, the website Services and any Additional Services as LLS, in its sole and absolute discretion, deems appropriate to protect the website from harm or inappropriate conduct, as a result of any breach by Client of the Agreement, or any threat to the integrity, security, and operation of the website.
- LLS will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any Client User may incur as a result of a Service Suspension.
- LLS shall use commercially reasonable efforts to provide written notice of any Service Suspension to Client and to provide updates regarding resumption of access to the website Services and any Additional Services following any Service Suspension. LLS shall use commercially reasonable efforts to resume providing access to the website Services and any Additional Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured.
3.5 Complaint of website Member Infractions.
Client may deliver to LLS a written complaint concerning any Client observation of an website Member breaching these Client Engagement Terms or making a bid or offer out of line with the market.
4.1 Client as Buyer or Seller.
The following procedure, together with the website Rules, shall apply to Client in respect of the posting of Product for sale on the website in its capacity as either the potential buyer of Product for sale on the website (the “Potential Buyer”) or the potential seller of Product for sale on the website (the “Potential Seller”).
4.2 Initiating Product Posting.
- Potential Seller may post Product offered to be sold by Seller on the website by entering and/or uploading the required information as prompted by the website user interface.
- Potential Buyer may post Product requested to be purchased by Buyer on the website by entering and/or uploading the required information as prompted by the website user interface.
4.3 Review of Posting by LLS.
Prior to any posting of Product for sale or purchase going live on the website, LLS shall review the information in the posting to ensure no required details have been omitted or are inaccurate. LLS shall have no liability whatsoever to Client for any delay in the Transaction as a result of LLS exercising its rights under this provision.
4.4 Requested Supporting Documentation.
Potential Buyer may, at any time prior to a Seller Trade Confirmation in respect of Product for sale on the website, request that LLS request from Potential Seller all or part of the Supporting Documentation for such Product. Potential Seller may or may not consent to the delivery of such requested Supporting Documentation to the Potential Buyer. In the event Potential Seller consents to the delivery of such requested Supporting Documentation, Potential Seller shall redact such requested Supporting Documentation in compliance with Section 5.4(c) of these Client Engagement Terms and provide same to LLS for transmittal to Potential Buyer.
4.5 Placing of Offers.
Potential Buyer may, as prompted by the website user interface, place a bid on any Product posted for sale on the website and such bid shall constitute a binding offer to purchase such Product. Such offer shall be open for acceptance by Potential Seller of such Product until the earlier of:
- time specified by Potential Seller on the website;
- Potential Buyer’s removal or deletion of such bid on the website; or
- Potential Seller’s removal or deletion of the posting on the website that gave rise to such bid.
4.6 Seller Trade Execution.
Potential Seller may at any time accept any bid/offer to purchase Product for sale on the website either:
- manually for such bid/offer as prompted by the website user interface;
- by written authorization for LLS to accept such bid/offer on Seller’s behalf; or
- automatically by pre-setting a reserve-price/auto acceptance for Seller’s Product using the website user interface and a Potential Buyer’s bid meeting such reserve-price. (each, a “Seller’s Trade Execution”).
4.7 Payment of Transaction Fee.
- Client acknowledges that as of the moment of Seller’s Trade Execution, LLS’s performance of the website Services shall be complete and the Transaction Fee shall be payable in respect of the Transaction that was agreed upon by the Seller’s Trade Execution.
- Promptly following Seller’s Trade Execution, LLS will review the details of the Transaction and, if acceptable to LLS, LLS shall issue an invoice to Client for the Transaction Fee applicable to Client in respect of the Transaction that was agreed upon by the Seller’s Trade Execution (the “Initial LLS Invoice”).
- For the purposes of such Initial LLS Invoice, the Transaction Fee applicable to Client shall be calculated based upon the Seller Determined Purchase Price (the “Initial Transaction Fee”).
- Client shall pay the Initial LLS Invoice no later than two (2) Business Days following a Seller’s Trade Execution and delivery of invoice.
- In the event that, upon its review of a Transaction under Section 6.7(b), LLS determines that required details have been omitted or are inaccurate, LLS will contact and work with the Transaction counterparties to correct the deficiencies. LLS shall have no liability whatsoever to Client for any delay in the Transaction as a result of LLS exercising its rights under this provision.
4.8 Order Confirmation.
- Promptly following Client’s payment of the Initial LLS Invoice, LLS shall issue to Buyer and Seller an Order Confirmation containing those particulars of the Transaction and in the form determined by LLS from time to time, in its sole discretion, the current version of which is attached to the Purchase Agreement in SCHEDULE A (each, an “Order Confirmation”).
- Each Order Confirmation shall act as a legally binding form of proof of the Transaction.
- Order Confirmations shall be sent to Client via the email address provided to LLS in the Client Intake Form.
- If Client does not receive an Order Confirmation within twenty-four (24) hours of Client’s payment of the Initial LLS Invoice, it is the responsibility of Client to contact LLS to notify LLS the Order Confirmation has not been received. LLS and Client shall then revise or update the contact information to ensure Client receives the Order Confirmation.
4.9 Purchase Order Terms Apply.
Following LLS’s issuance of the Order Confirmation in respect of a Transaction, the Purchase Order Terms shall apply to such Transaction as between Buyer and Seller.
4.10 Purchase of Product.
Seller shall transfer to Buyer all of Seller’s right, title and interest in and to all Product described on the Order Confirmation (the “Purchased Material”) in accordance with these Purchase Order Terms. Buyer shall accept the transfer of the Purchased Material from Seller in accordance with the terms of Schedule A
4.11 Delegation of Authority to LLS.
Client may, by written email or telephone call to LLS, delegate authority for LLS to undertake any task described in this Article 6 (including but not limited to the placing of bids and offers) on behalf of and as agent for Client. LLS shall have no liability whatsoever to Client in relation to the exercise of such authority, except where LLS acts not in accordance with or outside the scope of such delegated authority.
DATA; INTELLECTUAL PROPERTY OWNERSHIP
5.1 Submitted Content.
- Client shall be responsible for the accuracy of all information and Client Data submitted to LLS in connection with the Agreement, including, but not limited to, Registration Data and information with respect to Product being offered for sale through the website.
- All Client Data posted by Client to the website shall be accurate and complete and compliant with Applicable Law. Client shall promptly alert LLS if Client becomes aware of an error or omission in any Client Data posted by Client to the website.
5.2 Validity of Data.
LLS receives information and data from other website Members, counterparties, members of LLS, Government Authorities and does not vouch for the accuracy, validity or truth of such information and data. Client acknowledges and agrees that LLS is merely an aggregator of such information and data for the purpose of helping website Members, including Client, form more informed opinions and insights into the and the Industrial Hemp industries in Canada. LLS shall not be responsible to ensure the completeness or accuracy of any information submitted by any counterparty in a Transaction, nor the completeness or accuracy of any information exchanged over the course of a Transaction, including, but not limited to, product documentation, images of the products, or otherwise.
5.3 Ownership of Intellectual Property; Feedback.
- Client acknowledges that, as between Client and LLS, LLS owns all right, title, and interest, including all Intellectual Property rights, in and to the LLS IP.
- LLS acknowledges that, as between LLS and Client, Client owns all right, title, and interest, including all Intellectual Property rights, in and to the Client Data. Client hereby grants to LLS a non-exclusive, royalty-free, worldwide licence to reproduce, distribute, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be necessary for LLS to provide the website Services (and any Additional Services) to Client (and other website Members) or to enforce the Agreement and exercise LLS’s rights and perform its obligations hereunder, and anon-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Client Data incorporated within the Aggregated Statistics.
- If Client or any of its employees or contractors sends or transmits any communications or materials to LLS by mail, email, telephone, or otherwise, suggesting or recommending changes to the LLS IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), LLS is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Client hereby assigns to LLS on Client’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and LLS is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property rights contained in the Feedback, for any purpose whatsoever, although LLS is not required to use any Feedback.
REPRESENTATIONS AND WARRANTIES
7.1 Representations and Warranties.
Each Applicable Party represents and warrants to the other Applicable Party that:
- if a corporation, it is a corporation duly organized and validly existing in the jurisdiction of its incorporation;
- it is duly registered or licensed to carry on business in every jurisdiction in which such registration or license is required for purposes of the Applicable Document;
- it is and will at all times continue to act in compliance with all Applicable Laws required to operate its business and perform its obligations under the Applicable Document, including, but not limited to remaining a Licensed Business;
- it has all necessary power and capacity to enter into the Applicable Document and to perform its obligations under the Applicable Document;
- the execution and delivery of the Applicable Document, the performance by the Applicable Party of its obligations under the Applicable Document and the consummation of the transaction contemplated by the Applicable Document do not and will not conflict with, or result in a breach or violation of, or constitute a default under, any of the terms or provisions of:
- the constating documents of the Applicable Party;
- the resolutions of the Applicable Party’s shareholders or directors which are in effect;
- any judgment, writ, injunction, decree or order of a court, arbitrator or Governmental Authority that is binding on the Applicable Party;
- any contract or agreement to which the Applicable Party is subject or by which the Applicable Party is bound; or
- Applicable Law;
- the execution of the Applicable Document by its representative whose signature is set forth on the signature page of the Applicable Document has been duly authorized by all necessary corporate action; and
- when executed and delivered, the Applicable Document will constitute the legal, valid and binding obligation, enforceable against it in accordance with its terms, except as may be limited by any applicable bankruptcy, insolvency, reorganization, arrangement, moratorium, or similar laws related to or affecting creditors’ rights generally or the effect of general principles of equity.
INDEMNIFICATION AND LIABILITY
8.1 Mutual Indemnification and Liability.
As a result of, or in connection with breach of the Applicable Document or any negligence, omission or wilful misconduct in the performance of the Applicable Document by either Applicable Party (the “Indemnifying Party”), the Indemnifying Party:
- shall be liable to the other Applicable Party (the “Aggrieved Party”) and/or any of its directors, officers, shareholders, employees, agents, or others for whom the Aggrieved Party is responsible (collectively, the “Aggrieved Party Representatives”) for any and all actions, suits, proceedings, claims, demands, losses, costs, damages of whatsoever nature or kind (including legal fees on a solicitor and its own client basis) and any expenses whatsoever which the Aggrieved Party or the Aggrieved Party Representatives may suffer, sustain, pay or incur; and
- as a separate and independent covenant, shall indemnify the Aggrieved Party and the Aggrieved Party’s Representatives for any and all actions, suits, proceedings, claims, demands, losses, costs, damages of whatsoever nature or kind (including legal fees on a solicitor and its own client basis) and any expenses whatsoever which may be brought by a third party against the Aggrieved Party or the Aggrieved Party Representatives or which any of them may suffer, sustain, pay or incur.
8.2 Limitation of Liability.
- Under no circumstances and in no event shall either Applicable Party be liable to the other Applicable Party in contract, tort (including negligence or breach of statutory duty) or otherwise, whether foreseeable or not, and whatever the cause thereof, for any of the other Applicable Party’s indirect, punitive, incidental, special, exemplary or consequential losses or damages, arising out of or related to the terms of the Applicable Document, nor for damages for lost profits, loss of opportunity, loss of business, contracts, revenue, anticipated savings, use, opportunity, goodwill, or capital.
- The limitations of liability set forth in Section 3.2(a) shall not be applicable in relation to a breach of the provisions of these General Terms related to confidentiality and/or liability for infringement or misappropriation of Intellectual Property rights.
ANNOUNCEMENTS AND CONFIDENTIALITY
- Neither Applicable Party shall (orally or in writing) publicly disclose, issue any press release or make any other public statement, or otherwise communicate with the media, concerning the existence of the Applicable Document or the subject matter hereof, without the prior written approval of the other Applicable Party. Nothing in this Section 4.1 prohibits an Applicable Party from issuing a press release or making other disclosures required by Applicable Law if the Applicable Party or its Affiliate making the disclosure has first consulted with the other Party.
- Subject to Section 4.1(a), if either Applicable Party or any of its Affiliates is required by Applicable Law to file a copy of the Applicable Document (or any related agreements) on SEDAR (or otherwise publicly file a copy of the Applicable Document or any related agreements), the Applicable Party making the filing shall consult with the other Applicable Party with respect to, and agree upon, any proposed redaction to the Applicable Document in compliance with Applicable Law before it is filed on SEDAR (or otherwise). If the Applicable Parties are unable to agree on such redactions, the Applicable Party required to file a copy of the Applicable Document on SEDAR shall redact the Applicable Document to the fullest extent permitted by Applicable Law before filing it on SEDAR (or otherwise), with a copy of the redacted Agreement to be promptly delivered to the other Applicable Party.
9.2 Protection of Confidential Information.
- Each Applicable Party (the “Receiving Party”) shall treat any and all Confidential Information disclosed to it by the other Applicable Party (the “Disclosing Party”) pursuant to the Applicable Document as confidential and shall not disclose such information to any other Person other than in circumstances where an Applicable Party has an obligation to disclose such information in accordance with Applicable Law.
- Unless otherwise agreed to herein, the Receiving Party shall not, unless authorized by the Disclosing Party to do so:
- copy, reproduce, distribute or disclose to any Person any of the Confidential Information, or any facts related thereto;
- permit any third party to have access to such Confidential Information; or
- use such Confidential Information for any purpose other than for the purpose of performing its obligations under the Applicable Document.
- For certainty, the following information shall not be considered Confidential Information:
- information that at the time of disclosure or acquisition was in the public domain or later entered the public domain other than by breach of this Article or a confidentiality obligation owed by the Disclosing Party;
- information that at the time of disclosure or acquisition was already known to and had been reduced to writing by the Receiving Party;
- information that was independently lawfully developed by the Receiving Party; or
- information that after disclosure or acquisition was received from a third party that had no duty to maintain the information in confidence.
- In the event that Applicable Law requires a Receiving Party to disclose Confidential Information, such disclosure shall only be made after consultation with the Disclosing Party (if reasonably practicable and permitted by Applicable Law) provided that in the case of a public announcement required by Applicable Law, shall only be made in accordance with Section 4.1.
- Notwithstanding the provisions of this Section 4.2, each of the Applicable Parties acknowledges and agrees that:
- each of the Applicable Parties may disclose Confidential Information, subject to the redaction of the name of the other Applicable Party and dollar-related pricing information contained in the Applicable Document, to:
- a Person providing financing or funding to such Applicable Party in respect of its obligations under the Applicable Document; and
- any prospective purchaser of the assets of an Applicable Party or its shares, together with such prospective purchaser’s financiers, consultants and advisors (financial and legal),
- so long as, in each case, prior to receiving any such information the recipient enters into a confidentiality agreement with the Disclosing Party pursuant to which the recipient provides a confidentiality undertaking in favor of the other Applicable Party to maintain the confidentiality of the Confidential Information in a manner consistent with the Applicable Document; and
- each of the Applicable Parties may disclose Confidential Information to their respective directors, officers and employees (and the directors, officers and employees of their respective Affiliates) and the directors, officers, partners or employees of any financial, accounting, legal and professional advisors of such Applicable Party and its Affiliates, as well as any contractors and subcontractors of such Applicable Party, provided that each of such individuals to whom Confidential Information is disclosed is advised of the confidentiality of such information and is directed to abide by the terms and conditions of this Article 4.
- each of the Applicable Parties may disclose Confidential Information, subject to the redaction of the name of the other Applicable Party and dollar-related pricing information contained in the Applicable Document, to:
9.3 Duration of Confidentiality.
The provision of this Article 4 shall apply to the Applicable Parties indefinitely.
10.1 Intellectual Property.
- Each Applicable Party retains and reserves all its own intellectual property of any nature and kind, including all domestic and foreign trade-marks, label design, label text, logos, business names, trade names, domain names, trading styles, patents, trade secrets, software, industrial designs, plant breeders’ rights, and copyrights, whether registered or unregistered, and all applications for registration thereof, and inventions, formulae, recipes, product formulations, processes and processing methods, technology and techniques and know-how (collectively, “Intellectual Property”).
- Each Applicable Party agrees that nothing in the Applicable Document gives it any right, title or interest in the Intellectual Property of the other Applicable Party. Except where otherwise explicitly stated herein, nothing in the Applicable Document grants any right or license to market, sell, commercialize or distribute goods of the other Applicable Party or to use any Intellectual Property of the other Applicable Party.
10.2 Prohibited Acts.
Neither Applicable Party shall:
- take any action that might interfere with any of the other Applicable Party’s rights in or its Intellectual Property rights, including ownership or exercise thereof;
- challenge any right, title or interest of the other Applicable Party in or to the other Applicable Party’s Intellectual Property rights;
- make any claim or take any action adverse to the other Applicable Party’s ownership of its Intellectual Property rights;
- register or apply for registrations, anywhere in the world, for the other Applicable Party’s trade-marks or any other trade-mark that is similar to the other Applicable Party’s trade-marks or that incorporates the other Applicable Party’s trade-marks in whole or in confusingly similar part;
- use any mark, anywhere (except in the performance of its obligations under the Applicable Document) that is confusingly similar to the other Applicable Party’s trade-marks in whole or in part;
- misappropriate any of the other Applicable Party’s trade-marks for use as a domain name without prior written consent of the other Applicable Party.
11.1 Force Majeure.
If after the occurrence of a Force Majeure Event, an Applicable Party affected (the “Affected Party”) remains unable to carry out an obligation under the Applicable Document solely due to a Force Majeure Event, then the Affected Party must give to the other Applicable Party prompt written notice within a period of three (3) Business Days after it has become aware of the occurrence of the Force Majeure Event with all particulars of the Force Majeure Event and, so far as is known, the probable extent to which the Affected Party shall be able to perform or be delayed in performing its obligations. The other Applicable Party may give notice to the Affected Party of the extent to which the other Applicable Party’s ability to comply with its obligations shall be affected by the Affected Party’s inability to comply with its obligations. The relevant obligations of the Affected Party and the other Applicable Party, so far as they are affected by the Force Majeure Event (including by the inability of the Affected Party to perform its obligations due to the Force Majeure Event), shall be suspended during, but no longer than, the continuance of the Force Majeure Event. The suspension of performance shall be of no greater scope and no longer duration than is reasonably necessitated by the Force Majeure Event. However, the non-performance of any obligation of either Applicable Party that was required to be completed prior to the occurrence of the Force Majeure Event shall not be excused as a result of such subsequent Force Majeure Event. The Affected Party must use all commercially reasonable efforts to overcome or remove the Force Majeure Event as quickly as possible and shall furnish timely regular reports of progress to the other Applicable Party. The Applicable Party claiming Force Majeure Event shall give further notice to the other Applicable Party immediately upon it becoming aware that such Force Majeure Event has ceased to have effect.
12.1 Enurement and Assignment.
The Applicable Document shall be binding upon the Applicable Parties and their respective heirs, administrators and successors in interest. The Applicable Document shall not be assigned by either Applicable Party without the other Applicable Party’s written consent, not to be unreasonably withheld.
If any provision of the Applicable Document is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part of such provision and all other provisions hereof shall continue in full force and effect.
Time shall be of the essence hereof.
All of the costs and expenses including, without limitation, fees and disbursements of legal counsel, financial advisors, brokers and accountants, incurred in connection with the preparation of the Applicable Document shall be paid by the Applicable Party incurring such costs and expenses.
All notices and other communications pursuant to the Applicable Document shall be in writing and shall be deemed to have been duly given to the Applicable Party if delivered personally, sent by e-mail, facsimile or overnight courier, or mailed by registered mail (postage prepaid and return receipt requested) to the respective Notice Address set forth in the Applicable Document.
12.6 Amendment and Waivers.
Except as specifically set froth in the Head Agreement, no amendment or waiver of any provision of the Applicable Document shall be binding on an Applicable Party unless consented to in writing by such Applicable Party. No failure or delay to exercise, or other relaxation or indulgence granted in relation to, any power, right or remedy under the Applicable Document shall operate as a waiver of it or impair or prejudice it nor shall any single or partial exercise or waiver of any power, right or remedy preclude its further exercise or the exercise of any other power, right or remedy. The failure of any Applicable Party to insist upon strict adherence to any provision of the Applicable Document on any occasion shall not be considered a waiver or deprive that Applicable Party of the right thereafter to insist upon strict adherence to such provision or any other provision of the Applicable Document. No purported waiver shall be effective as against any Applicable Party unless consented to in writing by such Applicable Party. The waiver by any Applicable Party of a breach of any provision of the Applicable Document shall not operate or be construed as a waiver of any subsequent or other breach.
12.7 Remedies; Specific Performance.
The provisions of this Section 7.7 shall not apply in respect of any provision in the Applicable Document where an Applicable Party’s rights and remedies are stated to be sole and exclusive remedies or non-cumulative remedies, as applicable. Any and all remedies herein expressly conferred upon an Applicable Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such Applicable Party, and the exercise by an Applicable Party of any one remedy will not preclude the exercise of any other remedy. The Applicable Parties hereby agree that irreparable damage would occur in the event that any provision of the Applicable Document is not performed in accordance with its specific terms or is otherwise breached, and that money damages or other legal remedies would not be an adequate remedy for any such damages. Accordingly, the Applicable Parties acknowledge and hereby agree that in the event of any breach or threatened breach by any Applicable Party of any of its covenants or obligations set out in the Applicable Document, the other Applicable Party shall be entitled to injunctive relief to prevent or restrain breaches or threatened breaches of the Applicable Document by the other, and to specifically enforce the terms and provisions of the Applicable Document to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of the other under the Applicable Document. Each Applicable Party hereby agrees not to raise any objections to the availability of the equitable remedy of specific performance to prevent or restrain breaches or threatened breaches of the Applicable Document by it, and to specifically enforce the terms and provisions of the Applicable Document to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of the other Applicable Party under the Applicable Document.
12.8 Reasonable Commercial Efforts to Settle Disputes.
If any controversy, dispute, claim, question or difference (a “Dispute”) arises with respect to the Agreement or its performance, enforcement, breach, termination or validity, the parties to the Dispute shall use all reasonable commercial efforts to settle the Dispute prior to commencing legal action in the courts of the Province of Alberta. To this end, the parties to Dispute shall consult and negotiate with each other in good faith and understanding of their mutual interests to reach a just and equitable solution satisfactory to all parties to the Dispute.
12.9 Governing Law.
The Applicable Document shall be governed by and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein. For the purpose of all legal proceedings the Applicable Document shall be deemed to have been performed in the Province of Alberta. Each Applicable Party agrees to attorn and submit to the courts of the Province of Alberta in respect of any Dispute relating to the subject matter hereof.
- For purposes of the Applicable Document: (i) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; and (ii) references to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder.
- The parties acknowledge that their respective legal counsel have reviewed and participated in settling the terms of the Agreement, and the parties agree that any rule of construction to the effect that any ambiguity is to be resolved against the drafting party shall not be applicable in the interpretation of the Agreement.
The rights and obligations of the Applicable Parties set forth in this Section and any right or obligation of the Applicable Parties in the Applicable Document which, by its nature, should survive termination or expiration of the Applicable Document, will survive any such termination or expiration of the Applicable Document.
12.12 Relationship of Applicable Parties.
Nothing in the Applicable Document creates any agency, joint venture, partnership or other form of joint enterprise, employment, or fiduciary relationship between the Applicable Parties. Neither Applicable Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Applicable Party or to bind the other Applicable Party to any contract, agreement or undertaking with any third party.
No waiver or any breach of any provision of the Applicable Document shall be effective or binding unless made in writing and signed by the Applicable Party purporting to give the same and, unless otherwise provided in the written waiver, shall be limited to the specific breach waived.
12.14 Independent Legal Advice.
The Applicable Parties acknowledge and confirm that:
- they have been advised by independent legal counsel in respect of the provisions of the Applicable Document or alternatively has elected to proceed without independent legal counsel;
- the Applicable Parties have negotiated the provisions hereof on an equal footing based on equal bargaining power; and
- no Applicable Party was required or induced to enter into the Applicable Document.
The Applicable Document may be executed in several counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. Signatures of the Applicable Parties transmitted by facsimile or e-mail (or other electronic means) shall be deemed to be their original signatures for all purpose.
Client acknowledges and agrees that:
- THE website, ANY RELATED website SERVICES (INCLUDING ADDITIONAL SERVICES) AND THE INFORMATION AVAILABLE FROM OR THROUGH THE website OR LLS ARE PROVIDED “AS-IS,” “AS AVAILABLE,” AND ALL WARRANTIES, PROMISES, REPRESENTATIONS, AND GUARANTEES, WHETHER EXPRESS OR IMPLIED, ARE DISCLAIMED (INCLUDING BUT NOT LIMITED TO THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE OR ANY PURPOSE). ALL SUCH WARRANTIES, PROMISES, REPRESENTATIONS, AND GUARANTEES ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. INFORMATION MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. LLS DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT CLIENT’S USE OF THE website, ANY RELATED website SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT INFORMATION AVAILABLE THROUGH ANY OF SAME WILL BE ACCURATE OR ERROR-FREE, OR THAT THE website AND/OR RELATED SERVICES WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND LLS DISCLAIMS ANY LIABILITY RELATING THERETO. CLIENT AGREES THAT, FROM TIME TO TIME, LLS MAY TAKE DOWN OR REMOVE THE website OR ANY FUNCTIONALITY THEREOF, FOR INDEFINITE PERIODS OF TIME, OR CANCEL RELATED SERVICES OR ANY OF THEM AT ANY TIME, WITHOUT NOTICE TO CLIENT.
- LLS’S TOTAL, MAXIMUM AGGREGATE LIABILITY AND THE TOTAL, MAXIMUM AGGREGATE LIABILITY OF LLS’S REPRESENTATIVES, ARISING FROM OR RELATING TO THE AGREEMENT (REGARDLESS OF THE FORM OF ACTION OR CLAIM, E.G., CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY) IS LIMITED TO THE AGGREGATE OF THE TRANSACTIONS FEES AND OTHER CHARGES PAID TO LLS HEREUNDER BY CLIENT.
- THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND WILL SURVIVE CANCELLATION OR TERMINATION OF THESE CLIENT ENGAGEMENT TERMS OR CLIENT’S ABILITY OR RIGHT TO USE THE website. IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY TO APPLY, THE FOREGOING LIMITATIONS AND EXCLUSIONS WILL APPLY TO CLIENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
CLIENT ACKNOWLEDGES AND AGREE THAT LLS SHALL HAVE NO LIABILITY WHATSOEVER (REGARDLESS OF THE FORM OF ACTION OR CLAIM, E.G., CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY) TO EITHER BUYER OR SELLER IN RELATION TO THESE PURCHASE ORDER TERMS AS THEY APPLY TO ANY SPECIFIC TRANSACTION.THE FOREGOING EXCLUSION AND LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND WILL SURVIVE CANCELLATION OR TERMINATION OF THESE PURCHASE ORDER TERMS.
INCORPORATION OF GENERAL TERMS BY REFERENCE
14.1 Incorporation of General Terms by Reference.
- “Applicable Document” shall mean these Client Engagement Terms;
- “Applicable Party” shall be each of LLS and Client; and
- “Notice Address” shall be:
- for LLS, _________________ or email _____________com or such other office or email address as LLS may notify Client in writing from time to time; and
- for Client, the address specified in the Client Intake Form or email to the Notice Contact specified in the Client Intake Form.
THIS CONTRACT FOR SALE OF EQUIPMENT (this “Agreement”), is made between LOUD LION SUPPLY CORP. (“Seller”), and _______________________________________ (“Buyer”).
Each of Buyer and Seller may be referred to herein as a “Party” or “Parties”. Seller agrees to sell to Buyer, and Buyer agrees to buy, the equipment described in ATTACHMENT 1 (the “Equipment”), on the terms and conditions set out in this Agreement. GENERAL CONDITIONS OF SALE
- PURCHASE PRICE. The purchase price to be paid by the Buyer for the Equipment is ___________________ Dollars ($_____________ CAD) all inclusive (the “Purchase Price”), the sufficiency of which is hereby acknowledged by Buyer and Seller. The parties acting reasonably will mutually agree on how payment will be made.
- INSPECTION. Buyer confirms and acknowledges that it has fully inspected, or has been given an opportunity to inspect, the Equipment to its satisfaction and acknowledges that Equipment is fit for its use and purpose.
- “AS IS” CONDITION OF EQUIPMENT. The Buyer states that it has inspected the Equipment and/or has satisfied itself that the Equipment “as is” is suitable for the Buyer’s purpose and conforms with its expectations and requirements. Except as expressly set out herein, the Seller makes no representations or warranties of any kind in relation to the Equipment, and all Equipment described is sold in its “as is” condition.
- DELIVERY OR PICKUP. The Seller shall make the Equipment available for pickup by the Buyer EXW from the location identified in ATTACHMENT 1, but only and conditional upon the full payment of the Purchase Price by the Buyer to the Seller. Pickup times shall be mutually agreed upon by Buyer and Seller. All Equipment transportation, shipping and pickup costs will be at the Buyer’s expense from the pickup location.
- TAXES. Each Party shall pay all of its own expenses and taxes payable in connection with the transactions contemplated herein, provided, however, that Buyer shall be responsible for any applicable sales taxes on the purchase of the Equipment.
- TITLE, RISK OF LOSS, AND SELLER’S LIABILITY. Title to and risk of loss for the Equipment shall vest in the Buyer, free and clear of all liens, claims and encumbrances of any kind, upon Buyer’s payment of the Purchase Price for the Equipment. Upon payment the Buyer will receive a Bill of Sale (ATTACHMENT 2) for such Equipment. From the date of this Agreement to the date on which title to the Equipment is vested in Buyer, Seller shall take the same precautions to protect the Equipment from damage or loss as it is currently taking, which in any event shall be not less than the reasonably prudent precautions taken by other sellers of similar equipment to protect against damage or loss. The Bill of Sale shall be substantially in the form set forth on Schedule B attached hereto and shall be delivered to the Buyer upon receipt of the Purchase Price.
- LIENS. If the Equipment is subject to lien filings in accordance with the Uniform Commercial Code, Seller shall provide Buyer with such proof as is necessary that any and all liens have been satisfied and released. Seller represents and warrants that it has good and valid title to the Equipment and is authorized to convey the Equipment to Buyer free and clear or any and all liens, claims or encumbrances of any kind.
- NON-ASSIGNMENT. Buyer shall not assign, transfer or sublet its interest in or obligations hereunder without the express written consent of Seller.
- COUNTERPARTS. This Agreement may be executed in counterparts, all of which taken together shall constitute one single agreement between the Parties.
- SEVERABILITY. If any provision of this Agreement is held to be unenforceable, then the Parties shall be relieved of all obligations arising under such provisions, but only to the extent that such provision is unenforceable, and this Agreement shall be deemed amended by modifying such provision to the extent necessary to make it enforceable while preserving its intent, or if that is not possible, by substituting another provision that is enforceable and achieves the same objective and economic result.
- WAIVER. No delay or omission by any Party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by any Party of any covenant or breach shall not be construed to be a waiver of any succeeding breach or of any other covenant. All waivers must be in writing and signed by the Party waiving its rights.
- ENTIRE AGREEMENT; AMENDMENT. This Agreement, including all of its schedules and exhibits, each of which is incorporated into this Agreement, is the entire agreement between the Parties with respect to its subject matter, and there are not other representations, understandings or agreements between the Parties relative to this Agreement. No amendment or modification of any provision of this Agreement shall be valid unless in a writing specifically referencing this Agreement and signed by an authorized representative of each of the Parties.
- GOVERNING LAW. The Agreement, and the rights, obligations and liabilities of the parties thereto will be construed in accordance with the law of the Providence of Ontario, and the federal laws of Canada applicable therein.
- SUCCESSORS. This Agreement is binding on all parties who lawfully succeed to the rights or take the place of the Seller or Buyer.
- GENERAL. Seller and Buyer shall each, at its own cost and expense, from time to time and without further consideration, promptly execute and deliver all documents and take or cause to be taken all actions necessary or desirable to give effect to the provisions and intent of this Agreement, and the Bill of Sale to be delivered to Buyer pursuant hereto.
- LANGUAGE. The Parties have expressly requested that this Agreement and any agreements, proceedings, documents or notices related hereto or referred to herein be drafted and executed in English.
Bill of materials;