TERMS AND CONDITIONS OF SALE
SALE OF GOODS (INCLUDING DIGITAL CONTENT) FROM BUSINESS PREMISES
BACKGROUND
These Terms and Conditions explain the basis under which the Seller wishes to sell and the Buyer wishes to buy the Goods described at clause 2 for the price described at clause 4.
The Buyer should read these Terms and Conditions and the accompanying Order Form very carefully to make sure that he understands exactly what is being agreed and that they contain everything that the Buyer wants.
1. DEFINITIONS
In these Terms and Conditions and the Order Form, the following words and phrases have the following meanings:
‘Agreement’ | the Terms and Conditions and Order Form taken together |
‘Buyer’ | the person or company purchasing the Goods as named in the Order Form |
‘Commercial Unit’ | a unit of Goods for which division of the unit would reduce the value of the Goods or damage the character of the unit |
‘Confirmation of Acceptance’ | the Seller’s confirmation that the Buyer’s order has been accepted and a binding agreement has been formed for the supply of Goods |
‘Digital Content’ | data which are produced and supplied in digital form |
‘Goods’ | what the Buyer is purchasing as described at clause 2 of this Agreement |
‘Order Form’ | the form headed ‘Order Form’ containing the particulars of this sale and forming part of this Agreement |
‘Parties’ | the Buyer and the Seller |
‘Party’ | either one of the Buyer or the Seller |
‘Seller’ | the person or company selling the Goods as named in the Order Form |
‘Terms and Conditions’ | this document detailing the rights and responsibilities of the Parties |
2.1. The Goods which include Digital Content and are the subject of this Agreement are described more particularly in the Order Form. The Seller is under a legal duty to supply Goods that are in conformity with the Agreement. The Goods must be:
2.1.1.1. of satisfactory quality;
2.1.1.2. fit for purpose; and
2.1.1.3. as described in this Agreement.
2.2. The Seller may modify or update, or require the Buyer or a third party to modify or update any Digital Content component of the Goods, provided that the Digital Content shall always match the description provided before purchase by the Buyer.
3. ORDERING
3.1. By ordering the Goods from the Seller, the Buyer makes an offer to buy the Goods for the price stated in the Order Form. There is no binding contract between the Parties at the time when the order is made.
3.2. The Seller will contact the Buyer by email to tell the Buyer when the Goods are ready for collection where applicable. This Confirmation of Acceptance is the Seller’s acceptance of the order made by the Buyer using the Order Form. When the Confirmation of Acceptance is received there will be a binding contract between the Parties in the terms of this Agreement. The binding contract will only be for the Goods that are included in the Confirmation of Acceptance. It may not cover all the Goods the Buyer ordered, for example if stock is unavailable.
4.1. The total price of the Goods at the time the Buyer placed the order, including tax and VAT where applicable, is detailed in the Order Form. If there is a delivery charge, in addition to the price, this can also be found in the Order Form.
4.2. Occasionally, the Seller’s prices may change between the date of the order and the date of the Seller’s Confirmation of Acceptance in accordance with clause 3.2 above. Reasons for a price change include, but are not limited to, a change in the amount that the Seller is charged by his supplier(s) or a change in the VAT rate. What happens when the price changes depends on whether the new price is lower or higher than the price stated on the Order Form:
4.2.1. if the new price is lower than that listed on the Order Form, the Seller will charge the lower price and dispatch the goods;
4.2.2. if the new price is higher than that listed on the Order Form, the Seller will either cancel the Agreement or contact the Buyer to confirm whether he would prefer to cancel the Agreement or pay the higher price for the Goods.
4.3. Payment for the Goods must be made in accordance with the arrangements stated on the Order Form.
5. DELIVERY
5.1 If applicable, the Seller will arrange for the Goods to be delivered to the Buyer. The delivery charge is stated on the Order Form. Delivery will be attempted to the address provided by the Buyer on the Order Form.
5.2 Dates or times for the delivery of the Goods given by the Seller are estimates and cannot be relied on as definitive. The Goods will be delivered within an estimated 3 calendar days from the date of the Seller’s Confirmation of Acceptance in accordance with clause 3.2above. Delivery for the purposes of this clause includes attempted delivery at the delivery address in the Order Form.
5.3 If the Buyer or anyone nominated by the Buyer to take delivery of the Goods fails to take delivery when it is attempted, the Seller may charge the Buyer any costs incurred for storage and redelivery as a result.
5.4 The Goods may be delivered directly from the manufacturer or the Seller’s supplier and may be delivered in a number of instalments.
5.5 The Seller delivers worldwide.
6. PASSING OF RISK AND OWNERSHIP
6.1 The Goods will be at the Seller’s risk until delivered either to the Buyer or otherwise at the Buyer’s direction.
6.2 The ownership of the Goods shall not pass to the Buyer until the Seller has sent the Confirmation of Acceptance to the Buyer under clause 3.2 and has received payment in full, regardless of whether the Goods have been delivered to the Buyer at that date.
6.3 For the purposes of clause 6 if the Goods include Digital Content which is to be downloaded by the Buyer, the delivery of the Digital Content is effected at the time when it reaches the Buyer’s device.
7. RETURNS
7.1 If the Goods are not of satisfactory quality, are unfit for purpose or are not as described in this Agreement, the Seller will either refund the Buyer in exchange for the return of the Goods, repair the Goods, or replace them. It is the Seller’s choice as to which of these actions to take.
7.2 To trigger the Buyer’s right to a refund, repair or replacement of the Goods under clause 7.1:
7.2.1 the Buyer must notify the Seller of the problem with the Goods in writing using the contact details in clause 17 below within 3 calendar days of receiving the Goods;
7.2.2 the Buyer must return the Goods to the Seller at the Buyer’s expense; and
7.2.3 the Seller must be satisfied that the Goods are not of satisfactory quality, are unfit for purpose or are not as described in this Agreement. The Seller may require an opportunity to examine the Goods after their return to determine this.
7.3 The Buyer will be deemed to have accepted the Goods once he has either communicated their acceptance of the Goods to the Seller, or had a reasonable opportunity to inspect the Goods whether he has in fact inspected them or not. If the Goods form a Commercial Unit, the deemed acceptance by the Buyer of any part of that Commercial Unit shall be deemed acceptance by the Buyer of the whole of the Commercial Unit.
7.4 The Buyer cannot rely on a problem with the Goods as a reason for returning them if, before entering into this Agreement, the Buyer was expressly informed of the problem, inspected a sample of the Goods or used a trial version of any Digital Content from which the problem was obvious.
7.5 The Buyer is not entitled to only reject part of the Goods pursuant to clauses 7.1 and 7.2 if the Goods form a Commercial Unit. In these circumstances the Buyer must reject all or none of the Goods.
7.6 If the Goods are perishable, they are not returnable after the date by which the Goods can reasonably be expected to perish.
8. LIABILITY AND INDEMNITY
8.1 Nothing in this Agreement seeks to limit the liability of the Seller for fraudulent acts or omissions, death or personal injury caused under or in connection with this Agreement, whether arising in contract, negligence, tort, breach of statutory duty or otherwise.
8.2 Neither Party shall be liable to the other whether in contract, negligence, tort, breach of statutory duty or otherwise for any loss or damage sustained by the other Party indirectly or consequentially and including but not limited to economic loss or loss of profits, goodwill or business in general.
8.3 Subject to clauses 8.1 and 8.2, the Seller’s total liability to the Buyer will not, in any circumstances, exceed the total amount of the price payable by the Buyer.
8.4 In the event that the Buyer or his servants or agents breach these Terms and Conditions, or are negligent in their actions, the Buyer will, to the fullest extent permitted by law, indemnify the Seller against any liability, loss, claim, damage, expense suffered by the Seller as a result.
9. AMENDMENT AND ASSIGNMENT OF THIS AGREEMENT
9.1 This Agreement can only be amended by the agreement of the Parties in writing with signatures on behalf of both.
9.2 The Seller is permitted to assign or transfer the Agreement or any rights or obligations under it, or subcontract the same for performance to a third party. The Buyer is not permitted to assign or transfer the Agreement or his rights or obligations under it without the prior written permission of the Seller.
10. SEVERANCE
10.1 If any of the provisions of this Agreement are unlawful, invalid or otherwise unenforceable, such provisions shall be severed from the remainder of the Agreement. The remainder of the Agreement will remain valid and enforceable notwithstanding any such severance.
11. THIRD PARTIES
11.1 For the purposes of the Contracts (Rights of Third Parties) Act 1999, this Agreement is not intended to and does not confer any rights on any person who is not a Party. Any person who is not a Party does not have the right to enforce any provision of this Agreement.
12. CIRCUMSTANCES BEYOND THE CONTROL OF THE PARTIES
12.1 The Seller shall not be liable for any delay or failure to perform any term or part of the Agreement due to circumstances beyond the reasonable control of the Seller. Such circumstances include – but are not limited to – industrial action, lock out, trade dispute, power failure, internet outage, fire, natural disaster or outbreak of war. As soon as is reasonably possible after the discovery of such circumstances, the Seller must notify the Buyer in writing of any anticipated or existing delay or failure in performance.
12.2 If the circumstances referred to in clause 12.1 above continue for a period of longer than 3 days, the Seller can terminate the Agreement by giving 3 days’ notice in writing to the Buyer. All money owing under the Agreement before the circumstances arose shall be paid immediately.
13. ENTIRE AGREEMENT
13.1 These Terms and Conditions and the Order Form taken together are the entire agreement between the Seller and the Buyer and supersede any and all prior terms, conditions, warranties or representations to the fullest extent permitted by law.
14. WAIVER
14.1 Any failure or delay by the Seller in using rights or powers provided by this Agreement shall not constitute a waiver of the whole or any part of the Agreement. The partial or sole use of any rights or powers provided by this Agreement shall not prevent any additional use of the same rights or powers. The rights, powers and remedies in this Agreement are additional to the rights of the Parties provided by law.
15. GOVERNING LAW AND JURISDICTION
15.1 These Terms and Conditions shall be governed by and construed in accordance with Alberta law.
16. COMPLAINTS
16.1 In the event of a complaint of any nature the Seller can be contacted using the details below.
17.1 The Seller is Process IT operated Adrenaline Experiences Inc. of Po Box 90024, Airdrie, Alberta, Canada, T4B 0A2 and can be contacted at Tel: (877) 938-0388 or info@processit.tech. In circumstances where the Buyer is required to contact the Seller in writing, he can write to the Seller at info@processit.tech.
