Terms of Sale
Terms of Sale
For the purpose of this document Loonie Times Inc. (also
Your Relationship with Company: Introduction Loonie Times Inc. sale of Products, as well as its performance of Services and your use of the mascot or plush, are subject to the terms of this agreement between you, the customer (“you” or “Customer”) and Company (the “Agreement”). “Company” means Loonie Times Inc., on behalf of itself and its suppliers and licensors, or the entity identified on your order confirmation, invoice, or another form of purchase document entered into by you at the time you purchased the Products or Services. Unless there is a separate agreement in place with, between or among your affiliates or our affiliates, “Customer” shall include any of your affiliates that places a Company order, and “Loonie Times Inc.” shall include any Company affiliates with which such an order is placed. Purchases of Products or Services under this Agreement shall be solely for Customer’s own internal use and not for resale purposes.
Definitions: “Products” means full mascot, parts of mascot, mascot costume, mascot suits, mascot heads, accessories, plush or other items associated with mascot purchase and any other products provided hereunder. “Services” means any and all services provided by Company as described in one or more Service Agreements. “Deliverables” means the tangible and intangible materials, including illustrations, drawings, concepts, ideas, manuals, procedures, and recommendations prepared by Company or its suppliers, licensors, or subcontractors in the course of performing the Services. “Materials” means all content and other items included with or as part of the Products, Services, or Deliverables, such as text, graphics, logos, button icons, images, audio clips, information, data, photographs, graphs, videos, typefaces, music, sounds, finished mascot products and accessories, plush products, gift items, etc.
Additional Agreements: This Agreement, together with the Service Agreements (as defined below), form a legally binding contract between you and Company in relation to your purchase and use of Products and Services. In the event of a conflict between these agreements, the terms of these documents will be interpreted in the following order of precedence: (1) this Agreement; and (2) quote.
Invoices. Other than where up-front payment in full was required prior to acceptance by Company of an order, Invoices will be due and payable in accordance with section 4a. of this Agreement within the time period noted on your invoice, or if not noted, then within 30 days, measured from the date of the invoice, subject to continuing credit approval by Company, such approval may be revoked without further notice from Company. Company may invoice parts of an order separately or may invoice purchases of the Products, Customer agrees that all invoices shall be deemed accurate unless Customer advises Company in writing of a bona fide, material error within fourteen (14) days of the date of such invoice. In the event that Customer advises Company of a material error, (i) payment of any amounts corrected or modified by Company in writing shall be due within fourteen (14) days of such correction, and (ii) all other amounts shall be paid by Customer by the invoice due date. In the event Customer withholds payment of any invoiced amounts upon an assertion by Customer that such amounts are erroneous, and Company subsequently concludes that such invoiced amounts are accurate, Customer shall pay interest on such amounts as described above from the due date for such amounts until Company’s receipt of those amounts. In no case shall Customer be entitled to offset, defer or deduct any invoiced amounts that Company determines are not erroneous following the notification process set forth above.
Shipping Charges; Title; Risk of Loss: Taxes, environmental disposal surcharges, and shipping and handling charges are not included in Product prices unless expressly indicated at the time of sale. Title to Products passes from Company to Customer upon shipment to Customer. Loss or damage that occurs during shipping by a carrier selected by Company is Shipping company’s responsibility. Loss or damage that occurs during shipping by a carrier selected by you is your responsibility. Shipping and delivery dates are provided as estimates only. You must notify Company within 3 days of the date of your shipment or
Taxe: Customer may qualify for tax exemptions from time to time in which case Company requests that Customer provides it with a valid certificate of exemption or other appropriate documentary proof of exemption. The charges stated in the order or any invoice shall be exclusive of all duties, levies or any similar charges and shall exclude GST, PST, HST or other VAT or equivalent sales or use tax (each, a “VAT”). Unless otherwise specified in writing by Company, Customer shall pay all freight, insurance, and taxes (including but not limited to import or export duties, sales, use, value-add, and excise taxes). No taxes are charged to US clients, but it is the client’s responsibility to pay the local taxes if applicable
Prices: The prices charged for Products, and Services purchased under this Agreement shall be the amounts set forth on Company’s website or other quotation, or as provided by the applicable invoice or Service Agreements relating to such Products or Services. Quoted prices will remain in effect only until the expiration date of the quote or Company’s acceptance of your order, and such prices are subject to shortages in materials or resources, increases in the cost of manufacturing, currency fluctuations, or other factors. As a standard rule Company quotes Canadian clients in CAD currency and all international clients in USD
Changed or Discontinued Products or Services: Company’s policy is one of ongoing update and revision. The company may revise or discontinue Product or Services offerings at any time without prior notice to Customer. A change in a Product or Service may occur after a Customer places an order but before Company ships the Product or performs the Service. As a result, Products or Services Customer receives might display minor differences from the Products, Services Customer orders. However, the Company-branded Products will meet or exceed all material specifications of such order. Parts used in repairing or creating Products may be new, equivalent-to-new, or reconditioned.
Refunds, Returns, and Exchanges: Because this is a custom-made product there are no refunds, returns, exchange of product or services.
Proprietary Rights: All right, title, and interest in the intellectual property (including all copyrights, patents, trademarks, trade secrets, and trade dress) embodied in the Products and Materials, as well as the methods by which the Services are performed and the processes that make up the Services, shall belong solely and exclusively to Company or the applicable suppliers or licensors, and you shall have no rights whatsoever in any of the above, except as expressly granted in this Agreement. The Products and Materials are protected pursuant to copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. You may not modify, remove, delete, augment, add to, publish, transmit, adapt, translate, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Product and Materials, in whole or in part.
Privacy: For information about Company’s privacy practices, please read Company’s privacy policies at www.loonietimes.com/Privacy. These policies explain how Company treats your personal information and protects your privacy.
Limited Warranty: The Company products are warrantied for any defects for a period of one year from date of purchase. Any defects will be rectified with exception of the below stated two points. Except as expressly stated in the preceding sentences of this paragraph, company, (including its affiliates, contractors, and agents, and each of their respective employees, directors, and officers), on behalf of itself and its suppliers (collectively, the “company parties”) makes no express or implied warranty or condition with respect to any of the products, , or services, including but not limited to any warranty or condition ; Warranty is not applicable in the below two instances:
- Due to the delicate nature of the fabrics used in the production of the costume, the company cannot be held responsible for any damage caused by normal wear and tear
- Warranties do not cover damage due to external causes, such as accident, abuse, misuse, or not cleaning according to instructions provided which is also found on our website
Limitation of Liability: Company will not be liable for any incidental, indirect, punitive, special, or consequential damages arising out of or in connection with the products, or services because of performer error, weather conditions, excessive use, unsafe conditions during a performance, or defective or unclean mascot parts. It is the responsibility of the customer to ensure that mascot is in wearable condition for performers safety. These limitations, exclusions, and disclaimers shall apply to all claims for damages, whether based in contract, warranty, strict liability, negligence, tort, or otherwise. the parties agree that these limitations of liability are agreed to allocations of risk constituting in part the consideration for company’s sale of products, or services to customer, and such limitations will apply notwithstanding the failure of essential purpose of any limited remedy and even if a party has been advised of the possibility of such liabilities.
Indemnification: Company shall defend and indemnify you against any third-party claim or action that Products, Services, or Deliverables prepared or produced by Company and delivered pursuant to this Agreement infringe or misappropriate that third party’s Canadian or U.S. patent, copyright, trade secret, or other intellectual property rights (“Indemnified Claims”). In addition, if Company receives prompt notice of an Indemnified Claim that, in Company’s reasonable opinion, is likely to result in an adverse ruling, then Company shall at its option, (1) obtain a right for you to continue using such Products, Deliverables or allow Company to continue performing the Services; (2) modify such Products, Services or Deliverables to make them non-infringing; (3) replace such Products, Services, or Deliverables with a non-infringing equivalent; or (4) refund any pre-paid fees for the allegedly infringing Services that have not been performed or provide a reasonable depreciated or pro rata refund for the allegedly infringing Product, Deliverables, or Service. Notwithstanding the foregoing, Company shall have no obligation under this Section for any claim resulting or arising from (1) modifications of the Products, Services, Deliverables that were not performed by or on behalf of Company; or (2) Company’s compliance with your written specifications or directions, including the incorporation of any other materials or processes provided by or requested by you.
You shall defend and indemnify Company against any third-party claim or action arising out of (1) your failure to obtain any appropriate license, intellectual property rights, or other permissions, regulatory certifications, or approvals associated with Product provided by you, or associated with software or other components directed or requested by you to be installed or integrated as part of the Products, Software Services or Deliverables; (2) your breach of Company’s proprietary rights as stated in this Agreement; (3) any inaccurate representation regarding the existence of an export license or any allegation made against Company due to your violation or alleged violation of applicable export laws, regulations, or orders; or (4) your providing of (or providing access to) Excluded Data to Company.
Each party shall defend and indemnify the other party against any third-party claim or action for personal bodily injury, including death, to the extent directly caused by the indemnifying party’s gross negligence or willful misconduct in the course of performing its obligations under this Agreement.
Independent Contractor Relationship; Assignment; Subcontracting: The parties are independent contractors. No provision of this Agreement will or shall be deemed to create an association, trust, partnership, joint venture or other entity or similar legal relationship between Company and Customer, or impose a trust, partnership or fiduciary duty, obligation, or liability on or with respect to such entities. Neither party will have any rights, power, or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this Agreement.
Force Majeure. Neither party shall be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control, such as fire, flood, war, embargo, strike, riot, or the intervention of any governmental authority (a “Force Majeure”). In such event, however, the delayed party must promptly provide the other party with written notice of the Force Majeure. The delayed party’s time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure event lasts longer than 30 days, then the other party may immediately terminate, in whole or in part, this Agreement or the applicable Service Agreement by giving written notice to the delayed party.
Export Compliance. You acknowledge that the Products, and Services provided under this Agreement, which may include but not limited to Products, Services, and technology, are subject to the customs and export control laws and regulations of Canada and the United States (“U.S.”), may be rendered or performed either in Canada, the U.S., in countries outside of Canada and the U.S., or outside of the borders of the country in which you or your system is located, and may also be subject to the customs and export laws and regulations of the country in which the Products or Services are rendered or received. You agree to abide by those laws and regulations. You further represent that any software provided by you and used as part of the Products, Software, or Services contains no encryption or, to the extent that it contains encryption, such software is approved for export without a license. If you cannot make the preceding representation, you agree to provide Company with all of the information needed for Company to obtain export licenses from the Canadian government, U.S. Government or any other applicable national government and to provide Company with such additional assistance as may be necessary to obtain such licenses. Notwithstanding the foregoing, you are solely responsible for obtaining any necessary licenses relating to the export of Product or Service.
Entire Agreement; Severability. This Agreement is the entire agreement between you and Company with respect to its subject matter and supersedes all prior oral and written understandings, communications, or agreements between you and Company. Any preprinted terms on your purchase order shall be given no force or effect and no terms of a purchase order that conflict with this Agreement shall be binding on Company. No amendment to or modification of this Agreement, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement should be found to be void or unenforceable, such provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of this Agreement will remain in full force and will not be terminated.
Updates. Company reserves the right to update this Agreement at any time, effective upon posting an updated version at www.loonietimes.com/terms; however, your rights and obligations shall be as provided in the version of this Agreement executed by you or available to you at the time of your purchase of Products, or Services.
Governing Law. This Agreement, Any Related Service Agreement, And Any Claim, Dispute, Or Controversy (Whether In Contract, Tort, Or Otherwise, Including Statutory, Consumer Protection, Common Law, Intentional Tort And Equitable Claims) Between Customer And Company, including their affiliates, contractors, and agents, and each of their respective employees, directors, and officers arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), Company’s advertising, or any related purchase (a “Dispute “) shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law. The parties agree that the UN Convention for the International Sale of Goods will have no force or effect on this Agreement.
Venue. The parties agree that any Dispute shall be brought exclusively in the applicable provincial or federal courts located in Toronto, Ontario. Customer and Company agree to submit to the personal jurisdiction of the applicable provincial or federal courts located in the province of Ontario and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to
No class actions. Neither customer nor company shall be entitled to join or consolidate claims by or against other customers or pursue any claim as a representative or class action.
Limitation period. Neither party shall be liable for any claim brought more than one (1) year after the cause of action for such claim first arose.
Notices. Notice to Company under this Agreement or any related Service Agreement must be in writing and sent by postage prepaid first-class mail or receipted courier service to the address below or to such other address (including facsimile or e-mail) as specified in writing and will be effective upon receipt.
Loonie Times Inc.
160 Matheson Blvd East, Mississauga L4Z 1Y6
Commercial Terms of Sale (Canada)
Revision Date March 31, 2018
END OF AGREEMENT