GENERAL TERMS AND CONDITIONS FOR THE SALE OF GOODS 

1. Applicability  

1. These terms and conditions of sale (these "Terms") are the only terms which govern the sale of the goods ("Goods") by 9104-0246 Quebec inc. ("Seller") to the buyer named on the accompanying sales order ("Buyer"). Notwithstanding anything herein to the contrary, if a written contract 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 sales order (the "Sales Order") and these Terms (collectively, this "Agreement") comprise the entire agreement between the 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. Prices

1. Buyer shall purchase the Goods from Seller at the prices (the "Prices") set forth in Seller's published price list in force at the time that Seller accepts Buyer's Sales Order. The prices contained in the price list are subject to change without notice. All Prices given in a sales quotation are guaranteed for 30 days unless otherwise specified (the "Guaranteed Price Period"). If the delivery of the Goods to the Buyer occurs after the Guaranteed Price Period, the Seller shall at its sole discretion, invoice the Buyer on the basis of the increased prices.  
   
   
2. All Prices are exclusive of all harmonized sales tax, goods and services tax, 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; provided that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personnel or real or personal property, or other assets.
   
   
3. Prices are given in different currencies according to the Buyer's situation (CAN$, US$ or EURO). The Buyer shall pay in the currency of the invoice.

3. Shipping and delivery

1. Delivery of the Goods shall be made in accordance with the terms of the Sales Order. Seller shall use reasonable efforts to meet the delivery date(s) specified in the Sales  Order but in no case, shall the Seller be liable for any delays incurred with respect to the delivery of the Goods.
   
   
2. Title and risk of loss pass to Buyer based on the shipping terms and the incoterm provided on the Sales Order. See complete details online at https://www.fromagex.com/incoterms.
   
   
3. 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 and to 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, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.
   
   
4. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfilment of Buyer's purchase order.
   
   
5. If for any reason Buyer fails to accept delivery of any of the Goods, or if Seller is unable to deliver the Goods because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses including, without limitation, storage, and insurance.
   
   
6. Current shipping fees are available online at: https://www.fromagex.com/shipping.
   
   
7. Perishable products using refrigerated shipping and using dry ice are done according to the strict methods of their manufacturers. These products shall be verified and put under the right temperature storage without delay upon reception by the Buyer. Failure to do so may result in an alteration or loss of product.
   
   
8. Seller shall not be liable for any non-delivery of Goods unless Buyer gives written notice to the Seller of the non-delivery within five (5) days of the date when the Goods would in the ordinary course of events have been received. All liability of Seller for nondelivery 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's Acts or Omissions

1.  If Seller's performance of its obligations under these Terms is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants or employees, Seller shall not be deemed in breach of its obligations under these Terms or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.

5. Inspection and Rejection of Non-Conforming Goods

1. Buyer shall have 24hrs upon receipt to inspect the Goods ("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 the following: (i) goods shipped are different than identified in the Sale Order; (ii) product's label or packaging incorrectly identifies its contents; or (iii) damaged or defective Goods including (a) Goods which are not fit or safe for use consistent with the specifications provided in the applicable Sales Order, (b) Goods which do not meet the specifications provided in the Sales Order and (c) Goods which contain defects in design.  
   
   
2. If Buyer timely notifies Seller of any Non-Conforming Goods, Seller shall have the right to inspect such Non-Conforming Goods to determine if such Goods are nonconfirming. If the Seller confirms that the Goods in question are Non-Conforming Goods, the 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, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall contact the Seller's customer service for the return authorization number before shipping the Non-Conforming Goods. After receiving the return authorization number, Buyer shall ship, at its expense and risk of loss, the Non-Conforming Goods to Seller in accordance with the Sellers return policy available online at: https://www.fromagex.com/return-policy. If Seller exercises its option to replace Non-Conforming Goods, Seller shall, after receiving Buyer's shipment of Non-Conforming Goods, ship to Buyer, at Buyer's expense and risk of loss, the replaced Goods to the delivery point.
   
   
3. Buyer acknowledges and agrees that the remedies set forth in Section 5b) are Buyer's exclusive remedies for the delivery of Non-Conforming Goods. Except as provided under Section 5b), 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. Notwithstanding the foregoing, some Goods may be subject to a restocking fee and perishable Goods and packaging products (paper, casein labels, etc.) that were opened cannot be returned.

6. Payment Terms

1. Payment terms are indicated on the Sales Order.
   
   
2. Buyer shall pay interest on all late payments at the lesser of the rate of 18% per annum 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. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due.
   
   
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.

7. Custom-made products and special order

1. All orders for custom-made products shall be made via a written sales order (the "Custom Sales Order"). Any terms and conditions in the Custom Sales Order shall prevail to the extent they are inconsistent with these Terms. 
   
   
2. Custom-made products and orders require that the Buyer provide a down payment. These orders are processed only when the down payment is received by the Seller. All specifications for custom-made products shall be included in the Custom Sales Order and these specifications constitute the sole specification that Seller is required to maintain.
   
   
3. In the event that the Buyer cancels any Custom Sales Order, Buyer shall forfeit the down payment as compensation to the Seller for the cancellation.
   
   
4. In the event that the Seller is unable to complete the Custom Sales Order, Seller will refund to the Buyer the down payment, such refund constituting the sole and exclusive remedy of the Buyer with respect to the failure to complete a Custom Sales Order.  

8. Products compliance and conformity

1. Unless specified in the contract, the responsibility of the compliance of the Goods to the local laws, regulations and codes is assumed by the Buyer.
   
   
2. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.

9. Limited Warranty and Disclaimer

1. For all Goods manufactured by the Seller, Seller warrants to Buyer that for a period of one (1) year from the date of shipment of the Goods ("Warranty Period"), that such Goods will materially conform to the specifications Seller's published specifications in effect as of the date of manufacture and will be free from material defects in material and workmanship. Notwithstanding the foregoing, the Seller makes no condition or warranty whatsoever with respect to Goods manufactured by the Seller including any (a) any condition or warranty of merchantability; or (b) any condition or warranty of fitness for a particular purpose; or (c) condition or warranty of title; or (d) warranty against infringement of intellectual property rights of a third party; whether expressed or implied by law, course of dealing, course of performance, usage of trade or otherwise.
2. Products manufactured by a third party ("Third Party Product") may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 9a). For the avoidance of doubt, Seller makes no condition or warranty whatsoever with respect to any Third Party Product, including any (a) any condition or warranty of merchantability; or (b) any condition or warranty of fitness for a particular purpose; or (c) condition or warranty of title; or (d) warranty against infringement of intellectual property rights of a third party; whether expressed or implied by law, course of dealing, course of performance, usage of trade or otherwise. Notwithstanding the foregoing, all Goods manufactured by a third party may be covered by the manufacturer’s warranty as detailed in the Goods’ description on our website and included with the Goods. To obtain warranty service for defective Goods manufactured by a third party, please follow the instructions included in the manufacturer's warranty.  
   
   
3. The Seller shall not be liable for a breach of the warranty set forth in Section 9a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within five (5) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller's place of business at Seller's cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer's claim that the Goods are defective.
   
   
4. The Seller shall not be liable for a breach of the warranty set forth in Section 9a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller's or manufacturers oral or written instructions as to the storage, installation, commissioning, use including but not limited to excessive use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
   
   
5. Subject to Section 9d) and Section 9e) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller's expense, return such Goods to Seller.
   
   
6. THE REMEDIES SET FORTH IN THIS SECTION 9 SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY.

10. Limitation of Warranty

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 OR COULD HAVE BEEN REASONABLY FORESEEN 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 REMEDIES OF ITS ESSENTIAL PURPOSE.
   
   
2. SELLER SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND BUYER SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY BUYER FOR THE GOODS IN THE PRECEDING 12 MONTHS.
   
   
3. The limitation of liability set forth in Section 10 shall not apply to (i) liability resulting from Seller's gross negligence or wilful misconduct, and (ii) death or bodily injury resulting from Seller's acts or omissions.

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. Confidential Information

All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a nonconfidential basis from a third party.

13. Force Majeure

No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such party's ("Impacted Party") failure or delay is caused by or results from the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, tsunami, fire, earthquake, explosion; (c) epidemics, pandemics; (d) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (e) government order, law or actions; (f) embargoes or blockades in effect on or after the date of this Agreement;(g) national or regional emergency; (h) strikes, lockouts, labour stoppages or slowdowns, labour disputes, or other industrial disturbances;(i) shortage of adequate power or telecommunications or transportation facilities; (j) failure of any governmental or public authority to grant a necessary licence or consent; k) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 5 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of 90 consecutive days following written notice given by it under this Section 13, the other party may thereafter terminate this Agreement upon 15 days' written notice.

14. Assignment

Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

15. Relationship of the Parties

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

16. No Third-Party Beneficiaries

This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

17. Governing Law  

This Agreement is governed by, and interpreted and enforced in accordance with, the laws of the province of Quebec and the laws of Canada applicable therein, excluding the choice of law rules of that province. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

18. Forum Selection

The parties irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts of the province of Quebec, judicial district of Rimouski in respect of all disputes arising out of, or in connection with, this Agreement, or in respect of any legal relationship associated with it or derived from it.  

19. Notices

Each party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a "Notice") in writing and addressed to the parties at the addresses set forth on the face of the sales confirmation (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). Notices sent in accordance with this Section will be conclusively deemed validly and effectively given: (a) on the date of receipt, if delivered by personal delivery, or by a nationally recognized same day or overnight courier (with all fees prepaid); (b) upon the sender's receipt of an acknowledgment from the intended recipient (such as by the "read receipt" function, as available, return email or other form of written acknowledgment), if delivered by email; or (c) when sent, if sent by facsimile (with confirmation of transmission) on the date of transmission if a business day or if not a business day or after 5:00 p.m. on the date of transmission, on the next following business day.

20. Severability

If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

21. Survival

Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of a Sales Order including, but not limited to, the following provisions: Section 8 [Products Compliance and Conformity], Section 12 [Confidential Information], Section 17 [Governing Law] and Section 18 [Forum Selection].