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TERMS AND CONDITIONS OF PURCHASE
1. Engagement: Except where otherwise expressly agreed by the parties in writing, Vendor acknowledges and agrees that: (i) these Terms and Conditions of Purchase (“T&C s”) shall apply to any purchases of Deliverables by Wonder Brands Inc. doing business as Maison Longueuil Boulangerie (“Maison”) from the Vendor; (ii) these T&C are hereby incorporated into an Order issued by Maison or into an applicable vendor agreement that references these T&C (an “Agreement”); (iii) by supplying the Deliverables, Vendor is bound by and subject to the T&C; and (iv) any terms in any document issued by it that are in conflict with or otherwise not consistent with these T&Cs shall be deemed void and not applicable to the purchase of Deliverables by Maison. For purposes of these T&Cs: (a) “Maison” shall mean Wonder Brands Inc. doing business as Maison Longueil Boulangerie or any of its subsidiary companies; (b) “Vendor” shall mean the party identified on an Order who sells or provides Deliverables to Maison; (c) “ Deliverables” means any goods, materials and/or services provided to Maison by the Vendor pursuant to an Order; and (d) “ Order” means any purchase order or document ordering Deliverables from the Vendor.
2. Ownership: Title to, and risk of loss for any item provided to Maison as part of the Deliverables shall transfer to Maison once delivered to Maison (and installed, if applicable), in accordance with these T&Cs, unless rejected by Maison.
3. Fees:
(a) In consideration for the provision of the Deliverables, Maison shall pay to the Vendor the fees set out in an Order as may be governed by an applicable Agreement (the “Fees”).
(b) Unless otherwise indicated within an applicable Agreement, the Fees shall be fixed and are inclusive of all applicable freight, duty and taxes. The Vendor shall not be entitled to any prepayment for the Deliverables and undisputed Fees shall be paid to the Vendor within thirty (30) days following receipt by Maison of a correct and complete invoice. The Vendor shall not issue an invoice for any Deliverables which have not been accepted by Maison.
(c) Maison may deduct, set-off or apply all or part of any payment obligations owing by the Vendor to Maison against any sums due to the Vendor from Maison or its subsidiaries.
(d) Vendor shall issue an invoice to Maison no later than ten (10) days after the fulfilment of an Order
4. No Minimum Purchase: Unless otherwise expressly otherwise stated in an applicable Agreement, nothing obligates Maison to purchase any minimum level of Deliverables from the Vendor.
5. Applicable Laws: The Vendor shall at all times comply with all Applicable Laws. For purposes of these T&Cs, “Applicable Laws” means all applicable federal, provincial, territorial and municipal laws, statutes and all regulations, by-laws, ordinances, codes, standards, rules, orders and legally binding guidelines, including any policies, standards and procedures issued by Maison, which are in any way applicable to the Deliverables, including Maison’s Food Safety Program Schedule, and all applicable health, safety, environmental, security, supervision and other standard procedures while on Maison’s premises. For Products that are food or food-related products, including their contents, packaging and labelling, Applicable Laws include, without limitation, the Food and Drugs Act (Canada) and its regulations, the Safe Food for Canadians Act and Safe Food for Canadians Regulations, the Consumer Packaging and Labelling Act, all applicable requirements of the Canadian Food Inspection Agency, and, where applicable, Québec-specific legislation and regulatory requirements administered by the Ministère de l’Agriculture, des Pêcheries et de l’Alimentation du Québec (MAPAQ), including the Food Products Act (Québec) and its regulations. In addition, the Vendor shall obtain all applicable workers’ compensation and workplace safety clearances and certificates for all of its employees and agents engaged in the provision of Deliverables at no cost to Maison and shall furnish copies of such certificates to Maison upon request for review.
6. Delivery:
(a) Customer shall from time to time place Orders for the Deliverables. Each Order and each delivery, while governed by and subject to these T&C and an applicable Agreement, shall stand as separate transactions and shall have no consequences for other deliveries unless otherwise agreed to by the parties. An Order may be cancelled by Maison prior to shipment of the Deliverables.
(b) The Vendor shall suitably pack, mark and ship such items in accordance with the specific instructions provided by Maison (and Applicable Laws and industry standards) and the Vendor shall assure delivery in full, free of loss, damage and deterioration, to the delivery point specified by Maison on the delivery date or within the period specified by Maison. Vendor agrees that time, quantity and delivery is of the essence in performing Vendor’s obligations hereunder. The Vendor shall promptly notify Maison of any circumstance known or suspected that may cause a delay in the delivery of the Deliverables. The Order number must appear on the container, the packing list, invoice and correspondence relating to such Order, as applicable.
(c) Maison and its authorized representatives shall have the right, but not the obligation, to inspect the Deliverables at times and places designated by Maison before, during or after delivery or performance. The Deliverables shall be subject to final inspection by Maison or its authorized representatives and acceptance at the final destination specified. Maison’s making of or failure to make an inspection, examination or test of, or payment for, or Maison’s acceptance of, any Deliverables shall in no way relieve the Vendor from its obligation to conform to all of the requirements of these T&Cs and any applicable Agreement, and shall in no way impair Maison’s right to reject or revoke acceptance of any nonconforming Deliverables, or to avail itself of any other remedies to which Maison may be entitled, notwithstanding Maison’s knowledge of any nonconformity, its substantiality or the ease of its discovery. Maison reserves the right to review Vendor’s quality assurance and quality control procedures.
(d) Any aspect of the Deliverables not fully conforming to the terms of an Order, these T&Cs, an Agreement (where applicable), and any specifications, instructions, drawings or data submitted to the Vendor (or industry standards if no specifications are given) or violating any Applicable Law (collectively, “Nonconforming Deliverables”), may be refused or rejected by Maison and returned or held at the Vendor’s expense and risk. Where there are Nonconforming Deliverables, Vendor shall, where requested by Maison, promptly (and in any event, within seven days) replace the Nonconforming Deliverables with conforming Deliverables at no cost to Maison and pay for any additional or incremental expenses associated with such replacement, such as expedited shipping that Maison may require. Maison may also elect, at its sole option, to replace Nonconforming Deliverables with conforming deliverables from any other source, and Vendor will reimburse Maison for the difference between the cost of the replacement deliverables and the purchase price that was (or would have been) paid by Maison in respect of the Nonconforming Deliverables, plus any additional or incremental costs and expenses associated with such replacement. In addition, Maison may charge to the Vendor, and Vendor shall pay, all costs and expenses of inspecting, unpacking, examining, repacking, storing, and reshipping any rejected Nonconforming Deliverables and shall, at Maison’s sole option, reimburse or apply a credit towards Maison’s future payments, where Maison has already paid for such Nonconforming Deliverables. The remedies hereinabove afforded Maison shall not be exclusive, and Maison may hold Vendor liable for any and all damages arising from any breach or default set forth herein.
(e) If Vendor is out of stock or has a shortage with respect to any Deliverables, Vendor shall notify Maison immediately. Upon being notified that Vendor is out of stock or has a shortage with respect to any Deliverables, Maison may, without notice to Vendor, order similar or substitute deliverables from another Vendor, and Vendor shall pay to Maison within thirty (30) days after receiving a notice or invoice, any additional or incremental costs and expenses incurred by Maison to obtain substitute deliverables, including without limitation price differences, shipping charges and tax differences. Maison may, at its option, cancel any Order for Deliverables that are out of stock or that Vendor is unable to fulfill, without liability to Vendor for such cancellation.
7. Recall: If all or any part of the Deliverables is the subject of any order or requirement pursuant to any Applicable Laws requiring either Maison or the Vendor to recall, replace, repair or otherwise take back all or any part of the Deliverables, or if Maison or the Vendor reasonably determines that it is necessary to affect a voluntary recall (in either case, a “ Recall”) prior to any such order or requirement, the Vendor shall be responsible for all costs, expenses and other losses (including lost profits) associated with or resulting from any such action, including, but not limited to, any transportation and/or destruction of the portion of the Deliverables subject to the Recall and all cost of the recalled Deliverables. The Vendor shall fully cooperate with Maison in Maison’s implementation of any Recall of Deliverables and shall provide all quality and production data reasonably requested by Maison with respect to recalled Deliverables within 24 hours of Maison’s request.
8. Representations and Warranties: The Vendor represents and warrants, as applicable, that:
(a) it shall provide, operate and manage the Deliverables in a professional, competent and commercially prudent manner by an adequate number of appropriately trained, skilled and qualified personnel;
(b) it has the necessary resources and qualifications, including knowledge, skill and experience to provide the Deliverables;
(c) if applicable, the Deliverables shall be in good working order, free of material defects and handled, stored, shipped and utilized in a competent manner and in accordance with safe and sanitary industry practices and standards;
(d) the Deliverables shall (i) be new and free from defects in design, manufacture, materials and workmanship; (ii) be of merchantable quality, in good operating condition, fit and suitable for the purpose intended by Maison; and (iii) be free and clear of any security interests, claims, charges, encumbrances, or liabilities and that Vendor has good and marketable title to all Deliverables;
(e) it shall provide the Deliverables in accordance with all Applicable Laws and neither these T&Cs nor any applicable Agreement breach any other agreement to which the Vendor may be subject to;
(f) it shall obtain and maintain all licenses, permits, certifications and regulatory approvals necessary for the provision of the Deliverables;
(g) no part of the Deliverables will infringe or otherwise violate any patent, copyright, trademark, trade secret or other intellectual
property or other proprietary rights of any person;
(h) the Deliverables will conform to specifications and descriptions as set forth in an Order and an Agreement, where applicable, and/or any other documentation published or made available to the Vendor in relation to the Deliverables; and
(i) in the event any information or reports are provided by the Vendor to Maison as part of the Deliverables, such information or reports shall be complete and accurate in all material respects.
9. Independent Contractor and Employees: This is an agreement between separate legal entities and neither is the agent or employee of the other for any purpose whatsoever. The parties hereto do not intend to create a partnership or joint venture between themselves. Neither Maison nor the Vendor shall have the right to bind the other to any agreement or to incur any obligation or liability on behalf of the other party.
10. Audit, Inspection and Records: Vendor shall permit Maison and its third-party representatives to audit or inspect any facility where any Deliverables are produced, held, stored or transported, without prior notice, at Vendor’s sole cost and expense. Vendor agrees to accept and allow such unannounced audits and inspections during normal business hours. From time to time, Maison or its designee may collect or otherwise request that Vendor provide reasonable samples of the Deliverables to Maison or its designee for laboratory testing, at Vendor’s sole cost and expense. For a period for two (2) years following provision of the Deliverables to Maison, the Vendor shall maintain all books and records associated with an Order of such Deliverables and Maison shall have the right to inspect or audit such books and records and in the event an audit or inspection shows that Vendor has overcharged Maison, without prejudice to any additional remedy available to Maison, Vendor shall promptly pay Maison an amount equal to the overcharge plus interest at the lesser of eighteen percent (18%) per annum or the highest rate permitted by Applicable Laws.
11. Intellectual Property:
(a) The Vendor acknowledges that all trade-marks, logos, trade names, business names or other proprietary designations, artwork, designs, copy, inventions, ideas, concepts, techniques and all other intellectual property associated with the Deliverables (collectively the “ Intellectual Property”) are and shall remain the sole and exclusive property of Maison, and, unless otherwise agreed upon by the Parties in writing, the Vendor does not acquire any interest in any Intellectual Property associated with the Deliverables.
(b) The Vendor agrees not to dispute, interfere with or contest, for any reason, directly or indirectly, the validity, ownership, goodwill, reputation or enforceability of any of the Intellectual Property nor directly or indirectly attempt to dilute the value of the goodwill attached to the Intellectual Property nor counsel, procure or assist anyone else to do any of the foregoing.
(c) The Vendor shall not, without the prior written consent of Maison use any Intellectual Property, either directly or indirectly, for any purpose other than providing the Deliverables to Maison as reasonably required.
(d) Any invention, discovery, concept, know-how, process, formula, recipe, specifications, design, or other discovery made, created, or developed by the Vendor which is in any way associated with the Deliverables (each a “Development”) shall be immediately disclosed by the Vendor to, and shall be the exclusive property of, Maison. The Vendor shall do all things reasonably necessary to assign all right, title and interest in and to the Developments to Maison and assist Maison to obtain, in Maison’s name, anywhere in the world the relevant patent, copyright or other proprietary rights to same. The Vendor waives all moral rights in connection with the Developments. The Vendor agrees to obtain assignments of intellectual property in any Development and waivers of moral rights from its employees and independent subcontractors necessary to transfer to Maison (or waive in respect of moral rights) all rights, title and interests, of every kind and character that such individuals may have in the Developments.
(e) In the event of any alleged or actual infringement or contributory infringement (each an “ Infringement”) of any patent, trademark, copyright or other proprietary interest by reason of the manufacture, delivery, license, use or sale of any Deliverables, the Vendor shall, at Vendor’s sole expense, obtain for Maison a perpetual, royalty-free license with respect to the any Infringement, or shall replace or modify any Deliverables affected by an Infringement in a manner satisfactory to Maison, so as to avoid the Infringement without any degradation in the performance of the Deliverables. The Vendor’s obligation shall apply even if Maison furnishes a portion of the design or specifications for the affected Deliverables.
12. Indemnification and Limitation of Liability: The Vendor agrees to defend, indemnify, and hold harmless Maison, its subsidiaries and each of their respective directors, officers, employees, subcontractors and other representatives from and against any and all claims, actions, demands, complaints, legal proceedings, losses, liabilities, damages, judgments, settlements, fines, penalties, reasonable legal fees and any other costs or expenses (including lost revenue, lost profits, special, incidental, indirect, consequential and punitive damages) arising out of or in connection with any alleged or actual act, omission or breach by the Vendor (except to the extent caused solely by a negligent act or omission by Maison).
13. Insurance: The Vendor shall obtain and maintain the following insurance:
(a) Commercial General Liability Insurance with limits for bodily injury and property damage liability of not less than ten million dollars ($10,000,000) each occurrence, including personal injury, products/completed operations coverage, premises/operations liability, independent contractors liability, and broad form contractual liability specifically in support of, but not limited to, the indemnity provisions set forth herein.
(b) Commercial Crime (Employee Dishonesty) Insurance in the amount of not less than two million dollars ($2,000,000) per occurrence, including blanket coverage for theft of, or loss or damage to, any property and/or funds of others, including Maison and its subsidiaries arising out of or in connection with fraudulent or dishonest acts committed by Vendor’s employees, the Vendor’s subcontractors and/or other representatives, acting alone or in collusion with others, including third party extension.
(c) Errors and Omissions Liability Insurance in the amount of two million dollars ($2,000,000) per claim covering all professional liability.
(d) Automobile Liability Insurance (if applicable) for all vehicles owned or operated by the Vendor used in the provision of the Deliverables in an amount not less than two million dollars ($2,000,000) per occurrence for bodily injury or property damage.
(e) Employer’s Liability Coverage should include worker’s compensation insurance as required under Applicable Laws and employer’s liability coverage in an amount no less than $2,000,000 in an amount not less than two million dollars ($2,000,000) per occurrence
(f) All policies providing coverage shall (i) specify that it is primary coverage and not contributory with or in excess of any other insurance that may be maintained by Maison or its affiliates (ii) waive all present and future rights of subrogation against Maison and its affiliates; (iii) except for Workers’ Compensation, name Maison and its directors, managers, officers, representatives, agents, and employees, including all affiliates and their respective directors, managers, officers, representatives, agents and employees, as additional insureds and (iv) contain provisions that no cancellation, non-renewal or material changes in the policy shall become effective, except on thirty (30) days’ prior written notice to Maison. Upon request, the Vendor shall furnish to Maison a Certificate of Insurance evidencing the coverage required hereunder.
14. Termination:
(a) Without cause: Maison may terminate an applicable Agreement and/or any Orders, in whole or in part, at any time without cause upon providing thirty (30) days’ prior writ ten notice to the Vendor.
(b) For cause: Either party may terminate an applicable Agreement and/or any Orders for cause in the event of a breach by the other party if such breach is not cured within ten (10) days following written notice to the breaching party advising of such breach.
(c) Immediate termination: Either party may immediately terminate an applicable Agreement and/or any Orders by giving written notice to the other party if: (i) the other party becomes insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction;
(ii) the other party makes an assignment for the benefit of its creditors; or (iii) a receiver, trustee or similar agent is appointed with respect to any property or business of the other party.
15. Force Majeure: Neither party will hold the other party liable for failure to comply with any term of the T&C, an applicable Agreement or an Order where failure to comply has been caused by an event or conditions beyond the reasonable control of the affected party (each a “Force Majeure Event”). A Force Majeure Event may include an act of God, force of nature, fire or other casualty, expropriations, war like activity, insurrection, civil commotion or other similar act, but expressly excluding labour unrest or strikes by Vendor’s employees, subcontractors and/or other representatives. In the event of the occurrence of a Force Majeure Event, the affected party shall notify the non-affected party promptly upon the occurrence of same and describe in reasonable detail the circumstances causing the Force Majeure Event. The affected party must immediately commence all reasonable efforts to mitigate the Force Majeure Event. Where Vendor is affected by a Force Majeure Event, Vendor shall use commercially reasonable efforts to remedy such Force Majeure Event as quickly as practicable to minimize any disruption to Maison and Maison may, for greater certainty, seek to have its needs met by others. If there is a Force Majeure Event affecting Vendor that continues for a period of more than 30 days, then Maison may terminate an applicable Agreement and/or all Orders effective immediately upon notice to the other party without any penalty or liability.
16. Confidentiality:
(a) “Confidential Information” shall mean information received by one party (the “ Receiving Party”) from the other party (the “Disclosing Party”) that is proprietary to the Disclosing Party, not generally known in the applicable industry, would reasonably be considered confidential to the Disclosing Party, would do the Disclosing Party harm if divulged or that is marked, disclosed as or advised as being “ confidential” or “proprietary” by the Disclosing Party, including the terms of an Order, these T&Cs and an applicable Agreement.
(b) The Receiving Party shall keep strictly confidential all Confidential Information and prevent the unauthorized use or disclosure of all Confidential Information. The Receiving Party shall not use any Confidential Information for any purpose other than to provide the Deliverables. In no event will the Receiving Party use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care, to prevent the unauthorized use or disclosure of any Confidential Information.
(c) Exceptions: Notwithstanding the foregoing, the Receiving Party shall not be liable for use or disclosure of any Confidential Information that: (i) was already published or otherwise in the public domain through authorized disclosure at the time it is disclosed by the Disclosing Party to the Receiving Party; (ii) was already available or known to the Receiving Party (as established by the Receiving Party’s records) at the time it is disclosed to the Receiving Party by the Disclosing Party; (iii) is independently developed by the Receiving Party without reference to information disclosed by the Disclosing Party, provided such development can be adequately substantiated by the Receiving Party’s records; or (iv) is disclosed by the Receiving Party in response to an order of a court or other governmental authority provided that the Receiving Party provides the Disclosing Party prompt notice of any such order so that the Disclosing Party may seek a protective order or applicable relief.
(d) Need-To-Know Basis: Each Party shall only make available the Confidential Information to its employees and agents on a need-to- know basis and shall advise such employees and agents of the restrictions set forth herein with respect to the use of such Confidential Information. The Receiving Party shall be responsible for the unauthorized disclosure of any Confidential Information by its employees and agents.
(e) The Receiving Party acknowledges that a breach or threatened breach by the Receiving Party of any of the provisions in this Section would cause the Disclosing Party irreparable harm not compensable in damages alone and that in such instance the Disclosing Party may be entitled to seek and obtain, in a summary manner, interim, interlocutory and permanent injunctive relief without showing irreparable harm, specific performance and other equitable remedies.
(f) The Receiving Party shall immediately return or destroy all Confidential Information in its possession upon request of the Disclosing Party or upon termination or expiration or an Agreement, where applicable.
17. No Public Disclosure. Neither party shall make any public statement, announcement or disclosure to third parties concerning the existing of an Order, these T&Cs or an applicable Agreement or the terms thereunder, the business relationship between the parties or the transactions contemplated hereby without the prior written approval of the other party.
18. Dispute Resolution: If a dispute, controversy or claim (collectively, “Dispute”) is not resolved within thirty (30) days from delivery of a request to negotiate, Maison shall be entitled, but not obligated, to refer the Dispute to mediation or binding arbitration, at its discretion. If Maison issues a notice of mediation or arbitration, the Vendor hereby consents to the submission of the Dispute to the mediator or arbitrator.
19. Assignment and Subcontracting: The Vendor may not assign or transfer an Order, these T&Cs or an Agreement (where applicable), or any part thereof, to any third party, without the prior written consent of Maison, which consent may be withheld at Maison’ sole discretion. Maison may assign or transfer an Order, these T&Cs or an Agreement (where applicable), or any part thereof, to any of its assigns, subsidiaries, successors or other entity provided Maison gives prior writ ten notice to the Vendor. The Vendor shall not subcontract all or part of the Deliverables to any third party unless it obtains the prior written consent of Maison which such consent may be unreasonably withheld.
20. Notices: Any notice required pursuant to these T&Cs or an applicable Agreement must be in writing in English and delivered in person, sent by registered mail, return receipt requested, postage prepaid or sent by email, to the address and individual indicated on the Order. All such notices shall be effective on the date received. A copy of any notice sent to Maison shall be sent by email to legalnotices@wonderbrands.com.
21. Governing Law and Jurisdiction: The laws of the Province of Ontario and the applicable laws of Canada shall govern the Order, these T&Cs, and any related Agreement, and each Party hereby attorns to the exclusive jurisdiction of the courts of the Province of Ontario.
22. Conflicts: In the event of a conflict or inconsistency in any provisions in these T&Cs, an applicable Agreement, an Order, or any other document issued by either party, such conflict or inconsistency shall be resolved in the following order or priority: (a) an Agreement; (b) these T&Cs; (c) an Order; and (d) any document issued by Maison. Any document issued by the Vendor shall not be binding upon Maison unless Maison provides express written agreement otherwise
23. Severability: Any provision in an Order, these T&C or any applicable Agreement that is prohibited or unenforceable in any jurisdiction is, as to that jurisdiction, ineffective to the extent of such prohibition or unenforceability and is severed from the balance of such Order, these T&Cs or applicable Agreement, as applicable, all without affecting the remaining provisions or affecting the validity or enforceability of such provisions in any other jurisdiction.
24. Entire Agreement and Waiver: The Order, these T&Cs and an Agreement, where applicable, constitute the entire agreement between the Parties with respect to the provision of the Deliverables, and supersedes all other written or oral understandings or agreements between the Parties with respect to the provision of the Deliverables (including any understandings or agreements entered into by Vendor with any of Wonder Brands Inc. predecessors or prior related companies such as WF Bakery Inc., Weston Foods (Canada) Inc., Weston Foods US, LLC, Weston Foods US Inc., Weston Foods US Holdings Inc., Weston Bakeries Limited, Maplehurst Bakeries Inc., Maplehurst Bakeries LLC, Boulangeries Weston Quebec Limitée and Boulangerie Gadoua Ltée). No variation or modification of these T&Cs or an applicable Agreement shall be valid unless an amendment in writing is signed by a duly authorized officer of each party.
TERMS AND CONDITIONS OF SALE
1. Application of Conditions; Express Rejection of Other T&C: Except where otherwise expressly agreed by the Parties in writing, Customer acknowledges and agrees that: (i) these Terms and Conditions of Sale (“T&C”) shall apply to any purchases of Goods by the Customer from Wonder Brands Inc. doing business as Maison Longueuil Boulangerie (“Maison”); (ii) these T&C are hereby incorporated into a PO issued to Maison or into an applicable customer agreement that references these T&C (an “Agreement”); (iii) by issuing a PO to Maison, Customer is bound by and subject to the T&C and (iv) any terms in a PO or any other document issued by Customer that are in conflict with or otherwise not consistent with these T&C shall be deemed void and not applicable to the purchase of Goods by the Customer. For the purposes of these T&C: (a) “Maison” shall mean Wonder Brands Inc. doing business as Maison Longueuil Boulangerie or any of its subsidiary companies; (b) “Customer” shall mean the party identified on a PO or in an Agreement who purchases Goods from Maison; (c) “Goods” means any product or products identified in a PO purchased by the Customer from Maison; (d) “PO” means any purchase order issued by Customer for the provision of Goods by Maison; and (e) the “Parties” mean Maison and the Customer, collectively, and each, individually, is a “Party”.
2. Purchase Orders: In order to place orders for Goods, Customer shall from time to time issue a PO. Each PO is deemed to include these T&C and, once accepted, all POs shall exclusively govern the purchase of Goods together with an Agreement, where applicable. Unless otherwise agreed to by the Parties, each PO shall be accepted by Maison (a) upon issuance of an Order Confirmation by Maison to Customer; or (b) through the provision by Maison of Goods as requested by such PO. Maison has no obligation whatsoever to accept any POs and may, at any time in its sole discretion, reject a PO. Each PO and each delivery, while governed by and subject to these T&C, shall stand as a separate transaction and shall have no consequences for other deliveries unless otherwise agreed to by the Parties. POs for Goods cannot be cancelled or modified by Customer after acceptance except with the express written consent of Maison.
3. Price and Payment: Unless otherwise expressly agreed by the Parties in writing, prices of the Goods are set forth in the POs or an Agreement (where applicable) and shall be inclusive of loading, freight, carriage, and insurance. Unless otherwise expressly agreed by the Parties in writing, Maison shall have the right to adjust prices at any time in its sole discretion, including without limitation, to reflect changes in the product component, packaging, manufacturing, labour and shipping costs associated with the manufacturing, packaging and delivery of the Goods, as applicable. The prices for the Goods do not include any costs for duties or taxes, the amount of which shall be added to each invoice or separately invoiced by Maison to Customer. Unless otherwise expressly agreed to by the Parties in writing, payment terms shall be as set forth on the invoice. All invoices issued by Maison not paid when due shall owe interest at the greater of a rate of eighteen (18%) or the highest rate as permitted by applicable law. All invoices shall be paid to Maison when due. ANY FAILURE TO PAY AN INVOICE TO Maison WHEN DUE SHALL CONSTITUTE A MATERIAL BREACH OF THESE TERMS.
4. Set-off: In no event is Customer authorized to deduct any amounts from the amounts owed to Maison unless specifically authorized in writing by Maison.
5. Inspection and Acceptance: Maison warrants that the Goods shall conform with the specifications or description referred to in an applicable Agreement and shall conform with Maison’s Continuing Letter of Guarantee (a copy of which will be made available upon request). Further, Maison warrants that any accepted PO shall be delivered in full. Customer shall inspect the Goods upon delivery and shall provide Maison with notice in writing (within seven (7) days of delivery of the Goods) where the Goods are non-conforming or where an accepted PO has not been delivered in full. If no such notice is provided to Maison, it is presumed that the Goods have been accepted in full. If the Goods fail to conform or where an accepted PO has not been delivered in full, and Customer provides Maison with notice thereof within the stipulated timeframe, Maison shall, at its own option and within a reasonable time, either (i) repair or replace the non-conforming Goods at no charge to Customer or (ii) reimburse Customer by means of a refund or credit for the purchase price of the non-conforming Goods. The foregoing remedy shall be Customer’s sole remedy for failure of the Goods to comply with the warranties granted hereunder. In no event shall any Goods be returned, reworked, scrapped, resold, or donated by Customer without express written authorization of Maison. The warranties granted in this Section 5 (“Inspection and Acceptance”) are exclusive and in lieu of all other warranties, representations, conditions or other terms, express, implied, statutory, contractually or otherwise, including but not limited to any warranty of merchantability, suitability or fitness for any purpose.
6. Delisting: Maison may, at any time in its sole discretion, elect to delist or otherwise no longer sell one or more of the Goods listed in a PO or an applicable Agreement.
7. Delivery: Unless otherwise expressly agreed by the Parties in writing, delivery terms and the delivery location shall be as set forth in an Order Confirmation issued by Maison to Customer upon receipt of a PO.
8. Recall: In the event any Goods may be harmful to the public, are in violation of any applicable laws or are subject to any recall (a “Recall”), the Parties shall immediately take all actions necessary to recall, withdraw, correct or destroy, as appropriate, the affected Goods in accordance with Maison’s directions and/or as ordered or recommended by governmental authorities. Either Party shall, as promptly as possible, notify the other Party in writing of any situation or circumstance which could result in a Recall or seizure of Goods. Upon receipt of such notification, Maison shall immediately suspend distribution of any such Goods until further notice from Customer. The Parties shall cooperate fully in implementing any Recall of Goods, including without limitation, assisting Maison in determining the scope and cause of the problem and the location of Maison’s shipments of affected Goods, and providing assistance to Maison in communicating and responding to government authorities. To the extent permitted by applicable laws, Customer shall not make any communications to a government authority or to the public without the prior approval of Maison.
9. Confidentiality: For purposes of these T&C, “Confidential Information” means information received by one Party (the “Receiving Party”) from the other Party (the “Disclosing Party”) that is proprietary to the Disclosing Party, not generally known in the applicable industry, would reasonably be considered confidential to the Disclosing Party, would do the Disclosing Party harm if divulged or that is marked, disclosed as or advised as being “confidential” or “proprietary” by the Disclosing Party, and includes the terms of an applicable Agreement. The Receiving Party shall not use any Confidential Information for any purpose other than to perform its obligations pursuant to these T&C and an applicable Agreement and shall keep all Confidential Information strictly confidential. In no event will the Receiving Party use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care, to prevent the unauthorized use or disclosure of any Confidential Information. Each Party shall only make available the Confidential Information to its employees and agents on a need-to-know basis and shall advise such employees and agents of the restrictions set forth herein with respect to the use of such Confidential Information. The Receiving Party shall be responsible for the unauthorized disclosure of any Confidential Information by its employees and agents. The Receiving Party shall not be liable for use or disclosure of any Confidential Information to the extent (i) such disclosure required by law, (ii) the Confidential Information becomes part of the public domain through no fault of the Receiving Party; or (iii) the Confidential Information was already available or known to the Receiving Party (as established by the Receiving Party’s records) at the time it is disclosed by the Disclosing Party to the Receiving Party. If the Receiving Party is ordered by a court of competent jurisdiction to disclose Confidential Information to a third party, it shall provide the Disclosing Party as much advance notice as possible so as to permit the Disclosing Party to take appropriate steps, at the Disclosing Party’s expense, to prohibit, control or limit the proposed disclosure of the Confidential Information. The Receiving Party acknowledges that a breach or threatened breach by the Receiving Party of any of the provisions in this Section 9 (“Confidentiality”) would cause the Disclosing Party irreparable harm not compensable in damages alone. The Receiving Party further acknowledges that it is essential to the effective enforcement of these T&C and an Agreement, where applicable, that in addition to any other remedies to which the Disclosing Party may be entitled, the Disclosing Party be entitled to seek and obtain, in a summary manner, interim, interlocutory and permanent injunctive relief without showing irreparable harm, specific performance and other equitable remedies. The Receiving Party shall immediately return or destroy all Confidential Information in its possession upon request of the Disclosing Party or upon the termination or expiration of an Agreement, where applicable
10. Force Majeure: Neither Party will hold the other Party liable for failure to comply with any term of these T&Cs or an Agreement, where applicable, where failure to comply has been caused by an event or conditions beyond the reasonable control of the affected Party (each a “Force Majeure Event”). A Force Majeure Event may include an act of God, force of nature, fire or other casualty, expropriations, war-like activity, insurrection, civil commotion or other similar act.
11. Intellectual Property: With the exception of any of the Customer’s Marks (as defined in Section 12 (“Private Label Goods”) below) incorporated as part of any private label Goods, Customer acknowledges and agrees that Maison shall own and have exclusive title to all intellectual property rights in the Goods, including but not limited to all processes, formulas, recipes, and specifications related to or in connection with the Goods and any rights to trademarks, service marks, logos, copyright, labels, slogans, symbols, names, trade dress, patents, copyrights, or trade secrets appurtenant thereto. For clarity and notwithstanding any other provision of these T&C, if the Goods consists of existing or previous goods (including any component thereof) that Maison is selling, has sold to, or has previously otherwise developed for, a third party (“Legacy Goods”), Customer shall not have any right, title or interest in the Legacy Goods (including any formula, recipe, specifications, ingredient lists and other information related thereto) and Maison is not restricted from selling such Legacy Goods to third parties and the right, title and interest to such Legacy Goods (including any formula, recipe, specifications, ingredient lists and other information related thereto) shall remain with Maison. In addition, where Goods are developed by Maison specially for Customer either alone or jointly with Customer or the formula for Goods is supplied by Customer to Maison (such Goods collectively, "Custom Goods"), Maison will not be in breach of these T&C or otherwise liable to Customer, if Maison sells products to third parties where the size, weight, shape, length, width, thickness, piece count, case count, ingredients or formula are not identical to the size, weight, shape, length, width, thickness, piece count, case count, ingredients or formula of Custom Goods. Maison is only restricted from selling products that are identical to Custom Products in all respects. For clarity and notwithstanding anything elsewhere contained in these T&C, Maison shall not use any formula that is proprietary to Customer for the sale of goods to third parties. For clarity and notwithstanding anything elsewhere contained in these T&C, Customer will not in any event obtain any rights to any of Maison's manufacturing processes, Maison is not under any obligation to disclose its manufacturing processes and/or any information relating to the Legacy Goods to Customer, and such manufacturing processes and information in any event constitute Confidential Information of Maison.
12. Private Label Goods: Where the Goods constitute private label Goods, Customer grants a limited, revocable, non-exclusive, royalty-free license to Maison to use its trademarks, service marks, logos, copyright, labels, slogans, symbols, names and trade dress (collectively, the “Customer’s Marks”) to the extent necessary to supply such private label Goods pursuant to a PO or an applicable Agreement. Maison acknowledges that it is not entitled to and shall refrain from any use of the Customer’s Marks not expressly provided for hereunder without Customer's prior consent, which consent may be withheld in Customer's sole discretion. Maison shall not:
(a) sublicense Customer’s Marks to third parties, without the prior written consent of Customer;
(b) use the Customer’s Marks to manufacture products for or to supply products to any third party; or
(c) use the Customer’s Marks for any purpose not expressly provided for hereunder except with Customer’s prior consent, which consent may be withheld in Customer’s sole discretion. Customer shall indemnify and hold Maison harmless for any claims, losses, costs, expenses and damages (including reasonable legal fees) resulting from any trademark, trade dress or similar claims of infringement connected to Maison’s use of the Customer’s Marks or approved artwork. Where Customer delists, terminates or otherwise ceases to purchase any of the private label Goods from Maison where purchases were reasonably expected by Maison pursuant to a Customer forecast, Customer shall be responsible to purchase from Maison up to ninety (90) days’ worth of Maison’s finished product, packaging and unique ingredients inventory relating to such private label Goods (calculated based upon the forecasted inventory that would be reasonably required to fulfil Customer’s expected POs for such private label Goods within a ninety (90) day period following the Customer’s delist, termination or cessation).
13. Termination: If either Party is in material breach of performance of its obligations towards the other Party and has upon notice and within thirty (30) days thereafter failed to cure said material breach or if a Party becomes bankrupt, insolvent or otherwise unable to pay its debts, the non-breaching Party may suspend its performance or terminate any POs for outstanding delivery of Goods, and in such event, all outstanding claims of Maison shall become due and payable immediately with respect to the Goods supplied to Customer. Where the Parties have entered into an Agreement, except where expressly agreed otherwise (in writing) in such Agreement, either Party may terminate such Agreement for convenience upon at least ninety (90) days’ prior written notice to the other Party.
14. Limitation of Liability: IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF BUSINESS, LOST PROFITS, BUSINES INTERRUPTION, DAMAGE TO GOODWILL OR REPUTATION, DEGREDATION IN VALUE OF BRANDS OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES EXCEPT IN THE CASE OF A BREACH OF SECTION 9 (“CONFIDENTIALITY”) HEREUNDER.
15. Notices: Except where otherwise set forth in an Agreement, any notice required or permitted by these T&C must be in writing in English and delivered in person, sent by registered mail, return receipt requested, postage prepaid, or sent by email and addressed to the addresses provided for on the Order, with a copy to Maison’s Legal Department (email: legalnotices@wonderbrands.com). All notices shall be effective on the date received.
16. Independent Contractor: Neither these T&C nor an applicable Agreement shall create an employer/employee or principal/agent relationship between the Parties, who will operate as wholly independent companies. Neither these T&C nor an applicable Agreement shall be construed as binding the Parties as partners or as creating any other form of legal association, which would impose liability upon one Party for the act or failure to act of the other Party. The relationship of the Parties shall at all times be that of buyer and seller and neither Party shall have authority to make any commitment on behalf of the other Party. Further, each Party is solely responsible for the acts of its respective employees and agents, including without limitation, any negligent acts or breach of an obligation of confidentiality hereunder.
17. Governing Law and Jurisdiction: The laws of the Province of Ontario and the applicable laws of Canada shall govern these T&Cs, any applicable Agreement and any related PO, and each Party hereby attorns to the exclusive jurisdiction of the courts of the Province of Ontario.
18. Currency: Unless otherwise specifically indicated in these T&Cs, an applicable Agreement or in a PO, all dollar amounts referenced shall be in Canadian dollars (CAD).
19. Survival: If these T&C or if an applicable Agreement or any related PO, is validly terminated or expires, regardless of the circumstances of such termination or expiration, any section which by its nature extends beyond such termination or expiration will survive according to their terms, including but not limited to, this Section 19 and the provisions of: Sections 3 (“Price and Payment”); 4 (“Set-off”); 8 (“Recall”); 9 (“Confidentiality”); 11 (“Intellectual Property”); 12 (“Private Label Goods”); 14 (“Limitation of Liability”) and 17 (“Governing Law and Jurisdiction”).
20. Waiver: Failure by Maison to enforce at any time any provision of these T&C or an Agreement, where applicable, shall not be construed as a waiver of Maison’s rights to act or to enforce any such provision or of any other rights of Maison.
21. Severability: Any provision in these T&C or any applicable Agreement that is prohibited or unenforceable in any jurisdiction is, as to that jurisdiction, ineffective to the extent of such prohibition or unenforceability and is severed from the balance of these T&C or any applicable Agreement, all without affecting the remaining provisions or affecting the validity or enforceability of such provisions in any other jurisdiction.
22. No Public Disclosure: Neither party shall make any public statement, announcement, or disclosure to third parties concerning the existence of these T&C or an applicable Agreement or their terms, the business relationship between the parties or the transactions contemplated hereby, without the prior written approval of the other party except as required by applicable law.
23. Successors and Assigns: These T&C and any applicable Agreement enure to the benefit of, and are binding on, each of the Parties, and their respective successors and permitted assigns. Customer shall not assign any part of these T&C or any Agreement (where applicable) without the prior written consent of Maison.
24. Amendments: No variation or modification of these T&C or an applicable Agreement shall be valid unless an amendment in writing is signed by a duly authorized officer of each Party.
25. Conflicts: In the event of a conflict or inconsistency in any provisions in these T&C, an applicable Agreement, a PO, or any other document issued by either Party, such conflict or inconsistency shall be resolved in the following order or priority: (a) an Agreement; (b) these T&Cs; (c) a PO; and (d) any document issued by Maison. Any document issued by Customer shall not be binding upon Maison unless Maison provides express written agreement otherwise.
SHIPPING TERMS AND CONDITIONS
The following terms and conditions shall apply to carriage of all goods that originate from Wonder Brands Inc. doing business as Maison Longueuil Boulangerie or and/or any of its subsidiaries (“Shipper” or “Maison”). Carrier agrees that no other terms and conditions shall control unless expressly agreed to by Shipper in writing.
1. Bill of Lading: A Bill of Lading shall be completed in the form attached hereto for each shipment (the “Shipment”) of goods that Carrier agrees to transport on behalf of Shipper (the “Goods”) to a designated recipient (the “Recipient”). Carrier shall have the right to inspect the Shipment prior to signing the Bill of Lading and to reject transport of any part of the Shipment that is improperly packaged for transport or that shows signs of damage. By signing the Bill of Lading, Carrier agrees that the Goods are presumed to be undamaged, and Carrier accepts liability for transporting the Goods as indicated herein.
2. Shipping Conditions and Special Considerations: All Shipments are to be considered by Carrier to be labeled “Fragile” and “Handle with Care” given the nature of the Goods. Carrier agrees to instruct its employees, agents, and third parties handling the Shipment to handle the Shipment with care. To the extent that other special considerations are required to safely transport the Shipment without damage to the Goods, including but not limited to refrigeration or “this side up,” Shipper shall provide instructions to Carrier on the Shipment boxes themselves or on the Bill of Lading, as reasonable to convey the information to Carrier. By signing the Bill of Lading, Carrier accepts any additional conditions and instructions provided by Shipper on the Bill of Lading or on the Shipment boxes.
3. Compensation: Shipper shall pay Carrier for transportation of the Shipment pursuant to the schedules of rates and charges as agreed to in writing in advance by the Parties. Payment shall be made within sixty (60) days’ of receipt of invoice from Carrier. Carrier must include any and all charges pertaining to a Shipment in a single invoice, and Shipper’s payment of that invoice shall be considered full satisfaction of Shipper’s obligations to Carrier for the services provided by Carrier for that Shipment.
4. Liability of Carrier: (a). General. Carrier shall be liable for any loss of or damage to the Goods that occurs during or arising out of or in connection with Carrier’s discharge of its duties and responsibilities transporting the Shipment. (b) Receipt by Recipient. Receipt and acceptance of the Shipment by the Recipient shall not relieve Carrier of liability for loss of or damage to the Goods. Carrier remains liable for losses or damages that occurred during or arising out of or in connection with Carrier’s discharge of its duties and responsibilities transporting the Shipment, even if those losses or damages are discovered after acceptance of the Shipment by the Recipient.(c) Presumption. A presumption exists that the Goods are undamaged and properly packaged for transportation by Shipper when they are accepted by Carrier. Carrier shall have the burden of proving that the Goods were damaged or improperly packaged for transportation by Shipper(d) Third Party Liability. Carrier shall remain liable to Shipper for any loss of or damage to the Goods that occurs during Carrier’s discharge of its duties and responsibilities transporting the Shipment, regardless of interference from or negligence by a third party. Nothing in this clause shall limit Carrier’s ability to recover from the third party in such instance. (e) Additional Carriers. If Carrier tenders the Shipment to a different carrier for any part of the transportation of the Shipment to the Recipient, Carrier remains liable for any loss of or damage to the Goods that occurs during the other carrier’s custody of the Shipment as though the Shipment were still in the custody of the original Carrier for purposes of Carrier’s liability to Shipper. Nothing in this clause shall limit Carrier’s ability to recover from the other carrier in such instance. (f) Shipper’s Negligence. Carrier shall not be liable to Shipper for damage to the Goods caused by the negligent acts or omissions of Shipper, its agents, or employees. Carrier shall have the burden of proving Shipper’s negligence. (g) Damages, Fees, and Costs. Carrier is liable for any and all damages and losses occurring during or arising out of or in connection with Carrier’s discharge of its duties and responsibilities transporting the Shipment that are available at law, including but not limited to direct, special, indirect, or consequential damages, lost profits, loss of income, or loss of use. Carrier shall be liable for all attorneys’ fees and costs that Shipper incurs in recovering damages from Carrier.
5. Indemnification: Carrier shall indemnify and hold harmless Shipper, its agents and employees, from and against all third party loss, damage, fines, expense, actions and claims (collectively “ Claims”) for bodily injury (including injury resulting in death) and for loss or damage to property (including loss or damage to the Goods) where such Claims arise, in whole or in part, from the acts or omissions of Carrier, its agents or employees, or arise in connection with Carrier’s discharge of its duties and responsibilities transporting the Shipment.
6. Damage Claims: (a) Shipper agrees to file loss or damage claims with Carrier within sixty (60) days after discovery of the loss or damage by Shipper, or in the case of failure to make delivery, then within sixty (60) days after a reasonable time for delivery has elapsed. Carrier agrees to present payment or proof of declination of any loss/damage claim, or otherwise to resolve the claim, within sixty (60) days of receipt of Shipper’s claim. Carrier agrees that any applicable statute of limitations shall be tolled by any or all of the following: (a) Shipper’s failure to discover the loss or damage due to the possession or custody of the Goods by Carrier, the Recipient, or any other third party after Carrier accepts the Shipment; (b) the 60-day resolution period under which Carrier may either resolve or decline the claim discussed herein; and (c) Shipper’s reassurance that resolution of the claim is pending. (b) Shipper’s claim shall include a recitation of all damages then known that resulted during or arising out of or in connection with Carrier’s discharge of its duties and responsibilities transporting the Shipment. Failure of Shipper to identify all actual damages or losses in a claim shall not preclude later recovery by Shipper of those amounts if available by law.
7. Overcharge Claims: Shipper agrees to file overcharge claims with Carrier within sixty (60) days from the date of delivery of the Shipment.
8. Undeliverable Goods: (a) Where, through no fault of Carrier, the Shipment cannot be delivered, Carrier shall immediately notify Shipper using the contact information provided in the Bill of Lading that delivery cannot be made and shall request disposal instructions. (b) Pending disposal instructions, Carrier must store the Shipment as appropriate to preserve the Goods. If Shipper does not provide disposal instructions within three (3) business days of reasonable notice by Carrier, Carrier may charge Shipper a reasonable charge for storage of the Shipment. (c) If Shipper does not provide disposal instructions within twenty (20) days of reasonable notice by Carrier, Carrier may return the Shipment to Shipper at Shipper’s expense.
9. Weights: Carrier shall be responsible for ensuring the correct shipping weights of the Shipment on the Bill of Lading. If the weights shown on the Bill of Lading are inaccurate, Carrier shall retain proof of the same and shall notify Shipper of the weight difference in writing prior to sending an invoice to Shipper. Shipper shall not be liable for payment above the original shipping weight shown on the Bill of Lading unless Carrier provides adequate proof of the actual weight of the Shipment.
10. Insurance: During the term of the services Carrier agrees to carry and keep in full force and effect cargo liability insurance for the benefit of Shipper in an amount of not less than One Hundred Thousand Dollars ($100,000.00). Carrier also agrees to maintain Comprehensive General Liability and Automobile Liability insurance coverage for bodily injury and property damage in the form and limits prescribed by the Surface Transportation Board and state regulatory agencies, and Workers’ Compensation and Employer’s Liability insurance as required by statute in the jurisdictions applicable to Carrier’s performance hereunder.
11. Hazardous Materials: In the event that Shipper tenders or causes to be tendered hereunder materials designated as “hazardous” under applicable regulations, Shipper agrees to notify Carrier and to classify, describe, package, mark and label such materials in accordance with such regulations and otherwise to comply therewith.
12. Damaged or Refused Shipments; No Salvage: Carrier shall not dispose of damaged or rejected product without the prior written consent of Shipper. Carrier acknowledges and agrees that the Goods which are food products may not under any circumstance be salvaged.
13. Severability: In the event that any provision of these terms and conditions shall be construed as or declared to be invalid, unenforceable or unconstitutional, then said provision shall be considered severed to the extent of such invalidation, unenforceability or unconstitutionality. All remaining provisions of these terms and conditions shall remain in full force and effect.
14. Waiver: If either party fails to enforce, or waives the breach of any term or condition of these terms and conditions, such action or inaction shall not operate as a waiver of any other breach of such term or condition, nor of any other part of these terms and conditions, nor of any other rights, in law or equity, or of claims which each may have against the other arising out of, connected with or related to these terms and conditions.
15. Independent Contractor: Carrier shall perform the transportation services hereunder as an independent contractor and shall have exclusive control and direction of the persons operating the equipment or otherwise engaged in such services. Carrier assumes full responsibility for the acts and omissions of such persons and shall have exclusive liability for the payment of local, state, and federal payroll taxes or contributions or taxes for unemployment insurance, workmen’s compensation, old age pensions, or other social security and related protection with respect to the persons engaged in the performance of such transportation services and agrees to comply with all applicable rules and regulations pertaining thereto.
16. Compliance With Law: Carrier and Shipper shall comply with all federal, state and local laws and regulations applicable to the relationships created under these terms and conditions including, but not limited to, the United States Occupational Safety and Health Administration regulations, the United States Environmental Protection Agency regulations, the United States Department of Transportation regulations, and Canada’s Motor Vehicle Transport Act.
17. Governing Law and Jurisdiction: The laws of the Province of Ontario and the applicable laws of Canada shall govern these T&Cs, and any applicable Agreement, and each Party hereby attorns to the exclusive jurisdiction of the courts of the Province of Ontario.
18. Entire Agreement: These terms and conditions shall control the services of Carrier and relationship between Carrier and Shipper, solely and exclusively, with the exception of the specific shipment and payment information provided by the Maison’s Bill of Lading or the pricing schedule agreed to by the Parties. Any other bill of lading, shipping documents or terms and conditions of or provided by Carrier are expressly rejected and shall have no effect unless agreed to in writing by an authorized representative of Shipper.