Terms & Conditions of Sale (Resellers)

Last revised: September 14, 2018


These terms and conditions of sale (“Terms of Sale”) govern the sale by RXBRANDS CANADA ULC, a corporation registered under the Nova Scotia Corporate Registration Act (“Company”) of products through the [www.rxbrands.ca][www.rxbar.ca][if acquired] website (collectively, the “Site”) to purchasers for resale.


1. Arbitration.

These Terms of Sale provide that all disputes between you and Company that in any way relate to these Terms of Sale or your use of the Site will be resolved by BINDING ARBITRATION. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) to assert or defend your rights under these Terms of Sale (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Section below entitled Dispute Resolution for the details regarding your agreement to arbitrate any disputes with Company.

2. Governing Provisions.

These Terms of Sale apply to all sales of Company’s products offered on this Site to purchasers for resale (each, a “Purchaser”), and, together with the pertinent terms of the Company’s Terms of Use found here: Terms of Use, constitute the complete and final agreement between Purchaser and Company with respect to sales of Company’s products to Purchaser. Company’s acceptance of any order is conditional upon the Purchaser’s acceptance of these Terms of Sale. No additional or different terms or conditions, including any such contained in any email, purchase order, purchase acknowledgement, invoice or other form or correspondence will be of any force or effect, and Company hereby objects to such additional or different terms or conditions.  THE SALE OF PRODUCTS COVERED BY THESE TERMS OF SALE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF ONTARIO (WITHOUT REFERENCE TO CONFLICTS OF LAWS). UNDER THE CIRCUMSTANCES DESCRIBED IN THE CONCLUDING PARAGRAPH OF SECTION 12 BELOW, THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE COURTS OF ONTARIO.


3. Invoices; Payment.

Payment is due upon ordering the products. Company may withhold or cancel scheduled shipments at any time that any portion of Purchaser’s payment or account with Company is overdue.


4. Delivery, Claims and Force Majeure.

Delivery of goods to a carrier at Company’s loading point shall constitute delivery to Purchaser. Regardless of shipping terms or freight payment, all risk of loss or damage in transit shall be borne by Purchaser. Claims for shortages or other errors in delivery must be made immediately after receipt of a shipment. Company shall not be liable for any damage as a result of any delay or failure to deliver due to any cause beyond Company’s control, including (but not limited to) any act of God, act of Purchaser, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, riot, act of terrorism, delay in transportation or delays by Company’s suppliers.


5. Taxes and Other Charges.

Any tax, fee or charge of any nature whatsoever imposed by any governmental authority on or measured by the transaction between Company and Purchaser, excluding business income or franchise taxes imposed on Company, shall be paid by Purchaser in addition to the prices quoted or invoiced.


6. Changes.

Company may, without notice or other obligation to Purchaser, at any time make such changes in its products as Company deems appropriate. Company may also at any time, upon notice but otherwise without obligation to Purchaser, discontinue offering of any product.


7. Warranties.

Company represents and warrants that the products sold through its Site will of good and merchantable quality and free from defects. Company shall, in its sole option, replace or refund the purchase price of any defective products. REPLACEMENT OR REFUND SHALL BE COMPANY’S SOLE LIABILITY AND PURCHASER’S SOLE REMEDY WITH REGARD TO DEFECTIVE PRODUCTS.


8. Returns.

All returns shall be made in accordance with the Return/Guarantee Policy.


9. Compliance with Law.

Purchaser shall ensure that all products purchased by Purchaser from Company are sold in compliance with all laws, statutes, regulations, judicial or governmental restrictions, codes and ordinances, whether local, provincial or national. Purchaser shall immediately provide to Seller a copy of all communications received from or sent to any regulatory body that pertains to the products purchased by Purchaser from Company. Purchaser shall be responsible for, and shall defend and hold Company and its affiliates harmless from, any claims made for products purchased by Company and resold in violation of this Section 9.


10. Consequential Damages and Other Liability.

COMPANY SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR CONTINGENT DAMAGES WHATSOEVER, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER THEORIES OF LAW, WITH RESPECT TO PRODUCTS SOLD BY COMPANY, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY SHALL HAVE NO LIABILITY FOR PENALTIES, SPECIAL OR PUNITIVE DAMAGES, DAMAGE FOR LOST PROFITS OR REVENUES, LOSS OF MATERIALS, COST OF SUBSTITUTE GOODS, OR FOR OTHER TYPES OF ECONOMIC LOSS. IN NO EVENT SHALL THE COMPANY’S LIABILITY WITH RESPECT TO PRODUCTS SOLD BY COMPANY, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO EXCEED THE PURCHASE PRICE OF THE PRODUCT IN RESPECT OF WHICH SUCH LIABILITY ARISES. WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL THE COMPANY HAVE ANY LIABILITY WITH RESPECT TO ANY CLAIM RELATING TO PRODUCTS SOLD BY COMPANY, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO IF SUCH CLAIM IS MADE MORE THAN ONE YEAR AFTER THE DATE ON WHICH SUCH PRODUCT WAS DELIVERED TO THE BUYER, AND YOU HEREBY WAIVE ANY STATUTE OF LIMITATIONS TO THE CONTRARY.


11. Severability Clause.

If any provision of these Terms of Sale shall for any reason be held unenforceable, such provision shall be deemed deleted and replaced by an enforceable provision which, insofar as possible, achieves the same economic and other benefits for the parties as the severed provision was intended to achieve, and the remaining provisions of these Terms of Sale shall continue in full force and effect.


12. Dispute Resolution.

You and the Company agree that any dispute, claim or controversy arising out of or related in any way to these Terms of Sale or your use of the Site, including products ordered or purchased through the Site, shall be determined in accordance with the foregoing.

We will try to work in good faith to resolve any issue you have with these Terms of Sale or the Site, including products ordered or purchased through the Site, if you bring that issue to the attention of our customer service department. However, we realize that there may be rare cases where we may not be able to resolve an issue to a customer's satisfaction.

If a dispute has not been resolved within a period of 30 days from the date of which you brought the issue to the attention of our customer service department, either you or the Company may initiate mediation of the dispute in accordance with the National Mediation Rules of the ADR Institute of Canada, Inc. (or its successor), which mediation shall be held in Toronto, Ontario. If a dispute has not been resolved within a period of 30 days after the appointment of a mediator, the dispute shall be referred to and finally resolved by arbitration under the National Arbitration Rules of the ADR Institute of Canada, Inc. (or its successor), which arbitration shall take place in Toronto, Ontario. For certainty, the arbitration of a dispute shall be a condition precedent to the bringing of any action in a court by either party (unless otherwise permitted by these Terms of Use) with regard to a dispute, and any such action shall be for the sole purpose of enforcing the award of the arbitrator and shall be for no other purpose.

13. Indemnity.

You shall defend, indemnify and hold harmless the Company and its directors, officers, employees and affiliates from and against all losses, liabilities, damages and expenses arising out of any claim, suit or proceeding in connection with any alleged infringement of any intellectual property rights that relate to your use of the products sold to you by the Company or incorporation of such products in goods sold or distributed by you.