Purchase Terms and Conditions

  1. Applicability
    1. These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the good (“Goods”) by ROYAL BRINKMAN CANADA INC. (“Seller”) to the buyer named on the invoice (“Buyer”). Notwithstanding anything herein to the contrary, if a written contact signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
    2. The accompanying invoice (the “Sales Confirmation” and these Terms collectively, this “Agreement”) comprise the entire agreement between parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfilment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
  2. Delivery
    1. The goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of finished goods.
    2. Seller shall not be liable for any delays, loss or damage in transit. Risk of loss passes to Buyer upon the Goods leaving Seller’s facility.
    3. Fertilizer freight and delivery time will be determined at the time of order.
    4. All products marked as “Dangerous Goods (DG)” shall incur an additional shipping fee of $10.00 per unit to a maximum of $35.00 per skid. This charge relates to the additional expenses related to shipping dangerous goods.
  3. Inspection and Rejection of Non-Conforming Goods
    1. Buyer shall inspect the Goods within three (3) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Non-Conforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Non-Conforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
    2. If Buyer timely notifies Seller or any Non-Conforming Goods, Seller shall in its sole discretion, (i) replace such Non-Conforming Goods with conforming Goods, or (ii) credit or refund the Price for such Non-Conforming Goods.
    3. Buyer acknowledges and agrees that the remedies set forth in Section 3(b) are Buyer’s exclusive remedies for the delivery of Non-Conforming Goods. Except as provided under Section 3(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
  4. Non-Delivery
    1. The quantity of any instalment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
    2. The Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within three (3) days of the date when the Goods would in the ordinary course of events have been received.
    3. Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
    4. Buyer acknowledges and agrees that the remedies set forth in Section 4 are Buyer’s exclusive remedies for the non-delivery of Goods. Except as provided under Section 3(c), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
  5. Title. Title in the Goods remains with the Seller until such time that full payment has been received by Seller. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time. The security interest granted under this provision constitutes a purchase money security interest under the Ontario Personal Property Security Act.
  6. Price
    1. Buyer shall purchase the Goods from Seller at the prices (the “Prices”) set forth in Seller’s published price list in force as of the date of the receipt of Buyer’s purchase order.
    2. Prices are subject to change without notice.
    3. Volume discounts are available.
    4. All Prices are exclusive of all harmonized sales tax, goods and services tax, provincial sales tax, value added tax, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes.
  7. Payment Terms
    1. Subject to any credit terms which have been extended, Buyer shall pay all invoiced amounts due to Seller upon delivery of the Goods. Buyer shall make all payments hereunder in Canadian dollars by wire transfer, cheque, or credit card (Visa and MasterCard accepted).
    2. Buyer shall pay interest on all late payments at the lesser of the rate of 1.75% per month (21% per year) or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, legal fees on a full indemnity basis.
    3. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
  8. Limitation of Liability
    1. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY(CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    2. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
  9. Compliance with Law. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
  10. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer.
  11. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  12. Force Mejeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller.
  13. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein.
  14. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement.
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