Terms & Conditions of Sale (Resellers)

Last revised: April 19, 2021


These terms and conditions of sale (“Terms of Sale”) govern the sale by Kellogg Canada Inc. dba RX BRANDS CANADA, a corporation registered under the federal laws of Canada("Company") of products through the [www.rxbrands.ca][www.rxbar.ca][if acquired] website (collectively, the “Site”) to purchasers for resale, through the reseller storefront ("Reseller Store"). The sale of products to resellers is limited to corporate entities users only, such as incorporated gas stations, fitness studios, or convenience stores, ("Purchaser", "you" and "your"), and is not open to consumers or individuals acting for personal, family, or household reasons. The individual executing this agreement for Reseller represents and warrants to Kellogg that they have the full right and authority to bind the Reseller to these Terms of Sale.


1. Arbitration.

These Terms of Sale provide that all disputes between you and Company that in any way relate to these Terms of Sale, the products, or your use of the Site and/or Reseller Store 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 through the Reseller Store (each, a “Purchaser”), and, to the Purchaser's resale of any such products. Except as otherwise specified herein, these terms, together with the terms of the Company’s Terms of Use found here: Terms of Use, as modified by these Terms of Sale, 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 and the Terms of Use as modified by these Terms of Sale. No additional or different terms or conditions imposed or sought by Purchaser, including any such contained in any email, purchase order, purchase acknowledgement, 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 14 BELOW, THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE COURTS OF ONTARIO.


3. Reseller Account Creation

To become a Purchaser eligible to use the Reseller Store, you must apply to Company and be approved. We may require you to provide information such as your business number, tax number, and the nature of your business to complete your registration. When registering, you agree: (i) that you will provide complete and accurate information about your business; and (ii) to update such information as it changes. In the event that you do not provide or update such information, or we have reasonable grounds to suspect that it is inaccurate, or that you have not provided or updated such information, we shall have the right, in our sole and absolute discretion, to disable your password and prevent you from using the Site, an Reseller Store. It is your responsibility to keep your password confidential and secure. In the event that your username or password is used without your consent or that you discover any other breach of security, you agree to promptly notify us. We are not responsible for your failure to comply with this clause, or for any delay in shutting down your account after you have reported a breach of security to us. You are solely responsible for any and all activities which occur under your account.

4. Resales

Company authorizes Purchaser to resell, in compliance with all applicable law, products purchased from Company through the Reseller Store under these Terms of Sale. Any such sales shall be to purchasers who attend Purchaser’s physical sales location(s) in Canada. For greater clarity, Purchaser may not sell the product outside of Canada, or other than to persons at seller’s physical location In Canada (for example, Purchaser may not sell product online).
Purchaser may not sell the products for further resale or redistribution. Purchaser may not incorporate the products into other goods or sell them in packaging other than that in which they are sold by Company.
Purchaser understands and agrees that ability to resell product is non-exclusive and that Company may sell to other resellers and/or otherwise market the product as Company sees fit.

5. 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.


6. 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, product shortages, inability to obtain raw materials from usual sources of supply, transit failure or delay, accident, war, insurrection, civil disturbance, terrorist act, epidemic, pandemic, embargo or other governmental act, regulation or request, fire, flood, or other acts of nature, accident, strike, slowdown, war, riot, act of terrorism, delay in transportation or delays by Company’s suppliers.


7. 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. Purchaser is responsible for charging, collecting, reporting and remitting all goods and services tax/harmonized sales tax, and as applicable, any Quebec sales tax, provincial sales tax or retail sales tax, on the Purchaser’s sale of the products, all in accordance with applicable law. For further clarity, it is understood that in no event, will Company be responsible for the collection or remittances of any taxes for which Purchaser is responsible and that this section shall operate as a complete response to any assertion to the contrary.


8. 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.


9. 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.


10. No Returns.

All sales through Reseller Store are final and all orders are non-cancellable. We do not process exchanges or returns.


11. Compliance with Law and Company Instructions.

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 not engage in any unfair, false, misleading, deceptive practices, or otherwise illegal practices. Purchaser shall be responsible for the safe and sanitary handling, storage and display of the products for resale, and will follow any instructions from Company in regard to product storage and handling. Unless otherwise noted for a particular product, Purchaser must store and display the products out of direct sunlight and must store and display product in a cool, dry environment. 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.


12. Consequential Damages and Other Liability.

COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR CONTINGENT, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER THEORIES OF LAW, AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WITH RESPECT TO PRODUCTS SOLD BY COMPANY, THE SITE, OR THE RESELLER STORE, 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 DATA LOSS OF MATERIALS, COST OF SUBSTITUTE GOODS, BUSINESS INTERRUPTION, 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. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE, SITE-RELATED SERVICES, AND/OR LINKED WEBSITES IS TO STOP USING THE SITE AND/OR THOSE SERVICES. 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. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM AGGREGATE LIABILITY OF RX BRANDS CANADA TO YOU WITH RESPECT TO YOUR USE OF THIS SITE IS $100 (ONE HUNDRED DOLLARS).

13. 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.


14. 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 this provision.

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 action that action that may be brought to a small claims court, or 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.

15. 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 (including reasonable attorneys’ fees) arising out of any claim, suit or proceeding in connection with: i) your breach of these Terms of Sale or violation of applicable law, your use or access of the Site or Reseller Store, or access by anyone accessing the Site or Reseller Store using your user ID and password; ii) any representations or warranties made by Purchaser with regard to the products that are not approved by Company; iii) and/or any negligent act or omission, bad faith, or willful misconduct on the part of Purchaser.

16. Intellectual Property.

Purchaser recognizes Company’s exclusive ownership of all trademarks, copyrights, trade secrets, and any other intellectual property ("Intellectual Property") used by it on or in connection with the products and agrees that it will not, register, use or attempt to obtain any right in or to any such Intellectual Property or any intellectual property confusingly similar thereto. Other than the resale of the products as contemplated herein, Purchaser may not make any use of the Company's Intellectual Property without Company's prior written permission.
Any approval by Company to use its Intellectual Property shall be non-assignable, nonexclusive and non-transferable by Purchaser. Purchaser may only use the Intellectual Property in the specific manner and in the specific medium approved on writing by Company. Any use of Company’s Intellectual Property shall inure to the benefit of Company only and shall be in strict accordance with any quality control and trademark guidelines provided by Company from time to time. Purchaser will not, and it will not permit others to: (i) take any action inconsistent with or adverse to or otherwise challenge Company’s ownership or rights in and to the Intellectual Property, (ii) change or alter the Intellectual Property in any way, including without limitation, in appearance or spelling or change the case of letters, (iii) incorporate the Intellectual Property in Purchaser's own brand name, trade name, corporate name, trademarks, service marks, logos or domain names, or (iv) file any application or obtain any registration containing the Intellectual Property or any mark confusingly similar to the Intellectual Property in any country.
Purchaser acknowledges that the Intellectual Property is and shall remain the sole and exclusive property of Company and any rights and/or goodwill that may attach to such Intellectual Property as a result of Purchaser’s use thereof, shall enure only to the exclusive benefit and become the sole property of Company. Unless otherwise agreed upon in writing by Company, no grant of a license to or transfer of any right, title or interest in and to any Intellectual Property is made by this Agreement, whether by implication, estoppel or otherwise.

17. Independent Contractors.

The relationship between the parties hereto is that of independent contractors and no party has the authority to act for or bind any other party hereto without the prior written approval of that party.

18. Entire Agreement.

This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and may not be changed orally, but only by a subsequent instrument in writing, signed by or on behalf of each of the parties, which states that it is an amendment to this Agreement.

19. Amendments.

Notwithstanding section 15 of the Terms of Use, Company reserves the right, in our sole and absolute discretion, to modify all or any portion of these Terms of Sale or of the Terms of Use as they apply to these Terms of Sale at any time without incurring any liability or obligation whatsoever to you or any other person or entity.