12114933 Canada Inc (Dba StoreCan Corp) 4205 Shipp Dr, Mississauga, ON, L4Z 2Y9, Canada
1.INTRODUCTION
This agreement is formed by and between StoreCan Corp. (“Seller”) and the purchaser (“Buyer”) specified on Seller’s invoice, incorporated herein by reference, and the parties do hereby agree and covenant for mutual consideration as follows: Seller’s 20’x8’x6’, 40’x8’x6’, and 40’x9’x6’ ISO Steel Dry Cargo Containers and other containers (collectively, “Containers”) are offered for sale and sold subject to the terms and conditions specified herein. Seller will transfer to Buyer and Buyer will accept and pay for any and all Containers subject to this agreement at the prices and on the terms specified herein or in any invoice or supplement as may be incorporated herein by Seller. THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS-ACTION WAIVER IN SECTION 10, WHICH AFFECT YOUR RIGHTS ABOUT HOW THE PARTIES SHALL RESOLVE ANY DISPUTE. PLEASE CAREFULLY REVIEW THIS SECTION.
2. ENTIRE AGREEMENT
Unless otherwise expressly agreed in writing by Seller, this document, including all documents specified by Seller as being part of this document, constitutes the entire agreement between Seller and Buyer and supersedes all other agreements and understandings regarding the subject matter of this document. The terms of this agreement will not in any way be changed by any oral statements or the provisions of any of Buyer’s forms or documents unless specifically agreed to in writing by Seller. THIS AGREEMENT IS EXPRESSLY SUBJECT TO, AND SELLER’S ACCEPTANCE OF BUYER’S ORDER IS EXPRESSLY CONDITIONED ON, BUYER’S ASSENT TO EACH AND ALL OF THE TERMS OF THIS AGREEMENT. SELLER HEREBY OBJECTS TO ANY DIFFERENT OR ADDITIONAL TERMS NOT SPECIFICALLY AGREED TO BY SELLER IN WRITING, INCLUDING TERMS OF BUYER’S PURCHASE ORDER
3. CONTAINER PICKUP BY BUYER
All Containers are sold “AS IS” and “WHERE IS” and Buyer accepts each and any Container only on that basis. Buyer shall arrange for pickup of any Container(s) at its sole cost and expense. Containers are offered and available only on a FIRST COME, FIRST SERVED basis. Availability and accessibility may change without prior notice. Buyer must call Seller’s (or Seller’s dedicated) depot or terminal (“Seller’s Depot”) before pick up to ensure that any ordered Container is available and accessible. Seller shall not be liable to Buyer for any cost or claim, including any “dry-run” or extra wait time, incurred on account of Buyer’s failure to contact Seller’s Depot prior to dispatch for pickup. All risk of loss or damage to the Containers or liability arising as a result of the ownership thereof shall pass to Buyer upon pickup, notwithstanding that title transfer and payment may occur after pickup. After pickup, Buyer assumes and shall take sole and complete responsibility for all damages, costs, expenses and storage for any Container(s). Furthermore, as further described in Section 9, Buyer to the maximum extent permitted by law shall indemnify and hold harmless the Seller without limitation from and against all liabilities to third parties arising out of accidents or occurrences causing personal injury or property damage after delivery of any Container(s). It is Buyer’s sole responsibility to inspect Containers for damage before leaving Seller’s Depot. If Buyer is not satisfied with the condition of a Container, Buyer shall not pick it up. Otherwise, Buyer is responsible for all expenses incurred due to return, exchange, repair, or the condition of any Container(s). Buyer must arrange its own trucking for any Container(s) sold and must pick it up under the conditions specified in the Seller’s release information (“Release”), incorporated herein by reference. Buyer shall pay all freight charges, including minimum fees, stop-off charges, tariffs, assessments, and other charges related to transportation and storage of any Container. Buyer shall pick up any purchased Container(s) within ten (10) days from receipt of Seller’s Release. Thereafter, Buyer shall pay for storage in an amount of CAD$5.00, per TEU per day or depot tariff, as determined in Seller’s sole discretion. Buyer must pick up the exact Container(s) at Seller’s Depot as detailed on the Release. In the event that any incorrect Container(s) is picked up by Buyer, even inadvertently, Buyer, at its sole expense, shall immediately return any such Container, through any and all means, to its original pickup location at Seller’s Depot. Buyer must notify Seller of unit arrival upon in-gate of any Container. Complete Container numbers and gate-in dates shall be provided to Seller as confirmation of receipt. Seller shall have no liability whatsoever for loss or damage due to late delivery or non- delivery of any Container(s). Without limiting the foregoing, Seller will not be responsible for any claims or damages resulting from any delay in delivery or failure to perform which results from governmental regulations, strikes, lockouts, labor difficulties, civil unrest, war, shortage of materials, accident, fire, delays in manufacture or transportation, acts of God, or any other causes beyond the reasonable control of Seller. Furthermore, in the event that Seller’s performance of any sale is, in whole or in part, prevented or hindered by any cause whatsoever, Seller shall have the right to cancel, without liability on its part, the entire or any portion or portions of this contract so affected.
4. CONTAINER DELIVERY BY SELLER
All Containers are sold “AS IS” and “WHERE IS” and Buyer accepts each and any Container only on that basis. Containers are offered and available only on a FIRST COME, FIRST SERVED basis. Availability and accessibility may change without prior notice. All risk of loss or damage to the Containers or liability arising as a result of the ownership thereof shall pass to Buyer upon delivery, notwithstanding that title transfer and payment may occur after delivery. After delivery, Buyer assumes and shall take sole and complete responsibility for all damages, costs, expenses and storage for any Container(s). Furthermore, as further described in Section 9, Buyer to the maximum extent permitted by law shall indemnify and hold harmless the Seller without limitation from and against all liabilities to third parties arising out of accidents or occurrences causing personal injury or property damage after delivery of any Container(s). It is Buyer’s sole responsibility to inspect Containers for damage before the driver leaves the delivery site. If Buyer is not satisfied with the condition of a Container, Buyer shall inform the Seller before the driver leaves the site. Otherwise, Buyer is responsible for all expenses incurred due to return, exchange, repair, or the condition of any Container(s). Without limiting the foregoing, Seller will not be responsible for any claims or damages resulting from any delay in delivery or failure to perform which results from governmental regulations, strikes, lockouts, labor difficulties, civil unrest, war, shortage of materials, accident, fire, delays in manufacture or transportation, acts of God, or any other causes beyond the reasonable control of Seller. Furthermore, in the event that Seller’s performance of any sale is, in whole or in part, prevented or hindered by any cause whatsoever, Seller shall have the right to cancel, without liability on its part, the entire or any portion or portions of this contract so affected.
5. PAYMENTS AND REFUNDS
Seller’s performance hereunder shall at all times be conditioned on Buyer’s full payment for any and all purchased Container(s). Full payment for the quantities and prices specified per Seller’s invoice shall be made within five (5) business days from receipt of Seller’s invoice therefor. Any extended terms of payment must be explicitly approved in writing in advance by Seller and will bear interest at the rate of 12% per annum until paid in full. Once Buyer has picked up or removed any Container(s) from Seller’s Depot or has received any Container(s) at Buyer’s location, ALL SALES ARE FINAL and no refunds will be granted for any reason.
If any payment is untimely, Seller shall be entitled to cancel the transaction without further notice. Should Buyer be in possession of any Container(s) for which any payment or portion thereof is untimely, Seller has the right to hire a collection agency or take legal action in order to recover any unpaid amount due as well as any and all interest, expenses, costs, and attorneys’ fees paid or incurred by Seller in recovering any past due payment or in collecting any awards or judgments on past due invoices. Any and all payments must be received to Seller’s designated account and shall not be reduced on account of any fee, charge, tax, tariff, or other expense. Prices and pricing may change at any time. Seller may, in its sole discretion, modify Container prices or refuse to offer a product or price that was previously available.
6. TITLE AND SECURITY INTEREST
Title to any Container(s) ordered or delivered pursuant to these terms will not pass to Buyer until Seller has received full payment for the quantity and price specified in Seller’s invoice. If Buyer fails to make timely payment or if Seller’s has agreed to extended terms of payment for a Container, Seller reserves and is hereby granted a purchase money security interest in any and all Container(s) ordered or delivered for which full payment has not been made. Buyer represents and warrants to Seller that Buyer will not sell or attempt to transfer any interest in any Container(s) ordered or delivered hereunder before Seller has received full payment for such Container(s). The sale, disposition, or transfer of any interest in any Container(s) ordered or delivered to Buyer for which full payment has not been received by Seller is expressly prohibited. Regardless of the physical location of a Container, Buyer agrees that Seller will retain possession and the right to possession of any Container(s) until full payment has been received by Seller. Seller is authorized by this instrument to file as a financing statement a reproduction of these terms (which are a security agreement) together with the name and address of the Buyer and Seller, a description of the goods, and such other information as may be required by local law to perfect the security interest created by this instrument, and Buyer appoints Seller as Buyer’s attorney-in-fact to sign and deliver those documents and instruments as may be required to perfect the security interest created by this instrument.
7. TAXES
Container prices do not include taxes, tariffs, or any other governmental or administrative charges. Buyer agrees to assume sole responsibility for and shall promptly pay, indemnify and hold harmless Seller from any transfer, title, and registration fees, tolls, levies, duties, tariffs, governmental charge, and any and all taxes of any kind – including but not limited to sales or use taxes, value-added taxes (VAT), personal property taxes, or excise taxes – imposed in connection with the sale, delivery, import, or domestication of any Container(s)s, or any services rendered by Seller in connection with this contract including any penalties, fines or interest thereon.
8. DISCLAIMER; NO WARRANTY OR LIABILITY
BUYER AGREES THAT ANY CONTAINER RECEIVED WAS SOLD, “AS IS” AND “WHERE IS.” SELLER MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES WHATSOEVER, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SELLER DISCLAIMS AND BUYER WAIVES AND RELEASES SELLER FROM, ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION; (A) THE DESIGN, CONDITION, TITLE, AVAILABILITY, OPERATION, MERCHANTABILITY OF THE CONTAINERS OR FITNESS OF THE CONTAINERS FOR ANY PARTICULAR USE OR PURPOSE OF BUYER OR ANY OTHER USE OR PURPOSE; (B) THE CONFORMITY OF THE CONTAINERS TO THE SPECIFICATIONS REQUIRED BY ANY COUNTRY OR SUBDIVISION WITHIN WHICH THE CONTAINERS MAY BE USED; AND (C) ANY CLAIM BY WAY OF INFRINGEMENT OR THE LIKE. BUYER ACKNOWLEDGES AND AGREES THAT SELLER SHALL HAVE NO LIABILITY TO BUYER FOR ANY CLAIM, LOSS, OR DAMAGE CAUSED OR ALLEGED TO HAVE BEEN CAUSED DIRECTLY, INDIRECTLY, INCIDENTALLY OR CONSEQUENTLY BY THE CONTAINERS, OR BY ANY INADEQUACY THEREOF OR DEFICIENCY OR DEFECT THEREIN, OR BY ANY INCIDENT WHATSOEVER IN CONNECTION THEREWITH WHETHER ARISING IN STRICT LIABILITY OR OTHERWISE. SELLER SHALL NOT IN ANY EVENT BE LIABLE HEREUNDER FOR ANY LOST PROFITS OR INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER’S LIABILITY FOR ANY DIRECT DAMAGES SHALL BE LIMITED TO THE AMOUNT, IF ANY, BUYER HAS PAID TO US IN CONNECTION WITH YOUR PURCHASE OF ANY OF OUR CONTAINERS. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES AND THUS CERTAIN LIMITATIONS ABOVE MAY NOT APPLY TO YOU. IF THIS LIMITATION OF LIABILITY OR THE EXCLUSION OF WARRANTY SET FORTH ABOVE IS HELD INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, SELLER’S MAXIMUM LIABILITY FOR ANY TYPE OF DAMAGES SHALL BE LIMITED TO THE AMOUNT BUYER’S HAS PAID TO SELLER’S IN CONNECTION WITH THIS AGREEMENT, THIS BEING EXPRESSLY AGREED UPON AND UNDERSTOOD AS LIQUIDATED DAMAGES AND NOT A PENALTY. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES. WITHOUT LIMITING ANY OF THE FOREGOING, BUYER AGREES THAT IT IS SOLELY RESPONSIBLE FOR ENSURING THAT ANY CONTAINER IS SUITABLE FOR ITS PURPOSES AND COMPLIANT WITH ALL APPLICABLE LAWS, PRIOR TO RECEIPT OR USE OF ANY SUCH CONTAINER. BUYER ACKNOWLEDGES AND AGREES THAT THE CONTAINERS ARE INTENDED PRIMARILY FOR DOMESTIC, NON-INTERNATIONAL USE AND THAT BUYER ACCEPTS FULL RESPONSIBILITY FOR COMPLIANCE WITH DOMESTIC LAWS AND REGULATIONS WITH RESPECT THERETO. IN THE EVENT THE CONTAINERS ARE USED IN INTERNATIONAL TRADE, BUYER ACKNOWLEDGES AND AGREES THAT, WITHOUT LIMITING THE INDEMNITY CONTAINED IN SECTION 9, THE CONTAINERS WILL NOT BE RESOLD OR OTHERWISE DISPOSED OF IN ANY COUNTRY UNLESS BUYER PAYS ALL APPLICABLE CUSTOMS OR IMPORT DUTIES, TARIFFS, OR TAXES.
9.INDEMNIFICATION
Buyer expressly and irrevocably agrees that it shall hold harmless, indemnify, save, defend, advance fees, and reimburse Seller, to the maximum extent permitted by law, from and against any and all claims, demands, actions, costs, liabilities, losses, and damages of any kind or character (including all costs and attorneys’ fees) for loss or damage to property, or cargo of any person, and for personal injury (including death) to any person arising out of or incident to the ownership, possession, relocation, operation, control, use, or maintenance of any Container(s) arising after delivery of such Container(s) to Buyer or as a result of Buyer’s breach or violation of any provision of this agreement or any rights arising hereunder. The indemnity contained herein shall survive the termination of this contract and the delivery of any Container(s).
10. DISPUTE RESOLUTION
DISPUTE RESOLUTION, BINDING ARBITRATION, AND CLASS ACTION WAIVER THE PARTIES EXPRESSLY AND IRREVOCABLY AGREE THAT ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY CONTAINER ORDERED OR DELIVERED HEREUNDER, INCLUDING ANY QUESTION REGARDING THE FORMATION, TERMINATION, EXISTENCE, VALIDITY, ENFORCEABILITY OR APPLICABILITY, IN WHOLE OR IN PART, OF THIS AGREEMENT SHALL BE ARBITRATED UNLESS SUCH DISPUTE IS RESOLVED TO THE MUTUAL SATISFACTION OF THE PARTIES THROUGH NEGOTIATION OR MEDIATION. WHERE PERMITTED UNDER THE APPLICABLE LAW, THE PARTIES DISCLAIM AND WAIVE ANY RIGHT TO TRIAL BY JURY, AND AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE ACTION. THESE LIMITATIONS OF RELIEF ARE A PART OF THE BARGAIN BETWEEN THE PARTIES, AND THE PARTIES AGREE TO THE FOLLOWING PROCEDURE FOR RESOLUTION OF ANY AND ALL DISPUTES. If any dispute arises out of or in connection with this agreement, any purportedly aggrieved party shall give notice to each other party, where such notice will state the nature of and basis for the dispute with such other party. After notice has been given, the parties will attempt in good faith to discuss and negotiate a resolution of the dispute and may submit the dispute to mediation through a mutually acceptable mediator and, if the parties cannot agree on a mediator, then one may be provided by Judicial Arbitration and Mediation Services (JAMS). Any dispute not resolved by negotiation or mediation to the mutual satisfaction of the parties shall be arbitrated, including any question regarding the formation, existence, termination, validity, enforceability, or applicability, in whole or in part, of this agreement. Thirty (30) days from when any party first received notice of a dispute, any party may submit the unresolved dispute to final and binding arbitration by a single arbitrator through (a) JAMS Streamlined (for claims under $250,000), (b) JAMS Comprehensive (for all other claims), (c) any successor of JAMS if JAMS is no longer in existence, or (d) any similar arbitration group that can provide a former judge if JAMS is no longer in existence and without successor. Any arbitrator selected shall be selected by agreement of the parties, or failing that, by JAMS, or another arbitration group, on the basis, if possible, of his or her experience in the subject matter(s) of the dispute. The decision of the arbitrator shall be final, non- appealable, and binding upon the parties, and it may be entered in any court of competent jurisdiction. The arbitration shall take place in the County of Jefferson, State of Colorado. The arbitrator shall be bound by the laws of the State of Colorado applicable to the issues, without regard to its choice or conflicts of law rules. The parties waive the right to seek punitive damages and the arbitrator shall have no authority to award such damages. The arbitrator shall issue a detailed written opinion setting forth his or her decision and the reasons therefor within thirty (30) days after the arbitration proceeding is concluded. The remedies reserved to Seller herein shall be cumulative, not restrictive, and in addition to any other or further remedies provided by law. The arbitrator, as part of his or her final award, within his or her sole discretion, shall have the power, but not the obligation, to allocate direct and indirect costs and fees against any and all parties as he or she deems equitable. Any party seeking enforcement of any arbitration award shall be entitled to an award of all costs, fees, and expenses, including reasonable attorney’s fees, incurred in enforcing the award, to be paid by the party against whom enforcement is ordered. The obligation of the parties to submit any dispute arising under or related to this agreement to arbitration shall survive the expiration or earlier termination of this agreement. The existence, content, and result of the arbitration shall be held in confidence by the parties, their representatives, any other participants, and the arbitrator. All documents, discovery, and other information related to any such dispute, and the attempts to resolve or arbitrate such dispute, will be kept confidential to the fullest extent possible. Any claim or cause of action arising out of or related to this agreement must be filed within one (1) year after such claim or cause or action arose or be forever barred regardless of any statutes or law to the contrary.
11. ASSIGNMENT
Buyer may not assign this contract or any of its rights or obligations herein to any other person or entity without the prior written consent of Seller.
12. WAIVERS AND OMISSIONS
The waiver by either party of a breach or default in any of the provisions of this Agreement by the other party will not be construed as a waiver of any succeeding breach of the same or other provisions; nor will any delay or omission on the part of either party to exercise or avail itself of any right, power, or privilege that it has or may have under this Agreement act or operate as a waiver of any breach or default by the other party.
13. FORUM SELECTION, JURISDICTION, AND GOVERNING LAW
Subject to the mutual requirement to arbitrate set forth in Section 10, any and all litigation concerning any dispute arising out of or in connection with this agreement or any Container(s) ordered or delivered hereunder shall be filed and maintained only in the province of British Columbia Canada. Each party hereto hereby irrevocably consents to the jurisdiction of such courts. This agreement and the terms hereof are made under, and shall be construed and enforced in accordance with and governed by, the laws of the Province of British Columbia other than such laws, rules, regulations, or case law that would result in the application of the laws of a jurisdiction other than the Province of British Columbia.
14. GENERAL PROVISIONS
Terms used with initial capital letters will have the meaning specified herein. Whenever the singular form of a term or word is used in this Agreement and when required by the context, the same shall include the plural and vice versa. All pronouns (and any variation) will be deemed to refer to the masculine, feminine or neuter, as the identity of the person may require. The word ‘including’ means “including without limitation” and ‘or’ means “and/or.” The descriptive headings used in this agreement are included for convenience only and do not constitute a substantive part of the agreement or its provisions. All references herein to Sections are to Sections of this Agreement. Reference to any agreement, document or instrument means such agreement, document or instrument as amended or otherwise modified from time to time in accordance with the terms thereof, and if applicable, hereof.
In the event any provision of this agreement is declared to be void, invalid, unenforceable, or unlawful by any arbitrator, court, or tribunal of competent jurisdiction, such provision shall be deemed severed from the remainder of this agreement and the balance shall remain in full force and effect to the maximum extent permitted by law. Unless expressly agreed otherwise by Seller in writing, Seller may change the terms and conditions of sale at any time without notice