1 – STANDARD TERMS AND CONDITIONS
This Quote is valid only for up to its expiry date or up to the non-availability of the Products, whichever occurs first. This Quote, to which the present Standard Terms and Conditions are made part of, once accepted, signed by the Client hereunder and delivered to Grand Blue prior to said expiration date, without any changes or amendments made thereto, shall constitute a valid, enforceable, non-cancellable and irrevocable contract for the sale of the Products between the Parties. The later issuance of a purchase order for the Products by the Client, if any, shall be irrevocably considered as a mere administrative formality of the part of Client and shall at no time have for effect to modify the valid, enforceable and irrevocable contract for the sale of the Products already in effect between the Parties.
The present Standard Terms and Conditions shall apply to the sale of all Grand Blue’s Products. No other terms or conditions received from the Client, including in any purchase order, call-off documents or other commercial documentation forwarded to Grand Blue, made available on the Client ‘s website or otherwise, may modify, contradict, add or delete any or all of the present Standard Terms and Conditions or the Quote, in whole or in part. Any amendment, addition or deletion of any of the present Standard Terms and Conditions or any other provision of the Quote may only be done by way of a written amendment, signed or initialed by both Parties, or the issue of a modified quote once accepted, signed and returned to Grand Blue by the Client.
Unless as provided in the case of section 1.3 hereunder, the Products will be delivered by Grand Blue to the Client under Grand Blue’s own trademark. The Client shall not be authorized, accordingly, to use or display any of Grand Blue’s trademarks, tradenames, design, logos, domain names, corporate or business names, whether registered, pending or in use by Grand Blue anywhere in the world, when the Client is the end-customer of the Products. If the Client is in the wholesale or distribution business, the Client shall only be allowed to use, imitatively and on a non- exclusive basis, Grand Blue’s trademarks and tradenames as to make reference to the Products for their resale to the Client’s end-user customers.
If the Products have been ordered from Grand Blue to be labeled under the Client’s own trademarks, tradenames, design, logos (“Private Label Products”), the Client hereby undertakes to indemnify, defend and save Grand Blue harmless, (including in reasonable attorney’s fees and disbursements) from and against any claim, action or legal procedure that may be made or introduced against Grand Blue resulting from Grand Blue having labelled and sold the Private Label Products as per the Client’s instructions and/or material provided by the Client for such labelling. In case of Private Label Products, the Client will provide in digital format all necessary material and information to be displayed on labels to be printing by Grand Blue from blank labels and affixed on each box (1 label per box), in a timely manner, to ensure the timely shipping of the Products. Grand Blue reserves the right, at its sole discretion, to refuse any such material or information regarding the labeling of the Products determined by Grand Blue not to be in conformity with Grand Blues specifications, standards or policies or with applicable laws or regulations, or to be false, misleading or misbranded in any way. In such cases, compliant material and information shall be provided by the Client in a timely manner, to still allow shipping in accordance with the shipping schedule provided in the Quote, falling which said call-off shall be considered as incomplete and the provisions of section 0 shall apply.
Multiple orders: The Client shall send to Grand Blue in a timely manner and the provisions of section 0 for compliance with the shipping schedule provided in the Quote, all call-offs for partial shipping of the Products, up to the Total Purchased Quantity.
A delay of a minimum of twenty-five (25) business days (meaning Province of Quebec business days), from receiving a call-off and shipping an order, is necessary and such call-offs must be sent by the Client in a timely manner, taken into consideration such minimum delay, to comply with the schedule of shipping provided in the Quote. The shipping of Products in the case of any call-off either not received at all, non-compliant, incomplete or received late shall automatically be delayed to the next scheduled shipping according to the schedule provided in the Quote, unless the Parties have agreed otherwise in writing, and shall trigger the application of the frozen storage fees for the quantity of Products not being shipped, as per section 1.7 and other possible recourses available to Grand Blue. All call-offs must contain the following information : necessary material and information to be displayed on labels in conformity with section 1.3, requested shipping date, requested palletization and desired port of destination (if different from the Quote).
The Incoterms applicable to this sale of the Products are as indicated specifically in the Quote.
Any possible requested amendment, addition or deletion of any of the present Standard Terms and Conditions or any other provision of the Quote, made by the Client, including in any call-off or after a call-off has been already forwarded to Grand Blue, is subject to section 1.3 and could affect the purchase price of the Products and related shipping costs. Provided Grand Blue agrees at its sole discretion upon said request for modification, addition or deletion and section 0 is complied with, the Client agrees to pay said modified purchase price and related shipping costs, if any, if still requesting the modification once the modified price and related shipping costs have been confirmed by Grand Blue in writing to the Client. Notwithstanding the foregoing, a call-off will not be modified or postponed, once processing thereof has started.
Should the Client require any partial quantities of the Products to be shipped later then the agreed shipping schedule appearing on the Quote, or in the case the call-off for such Products is either not received at all, is non-compliant to this Quote, incomplete or received late, as per section 1.8, or if the Client does not take timely delivery of the Products when and where agreed upon as per the applicable Incoterms and the Quote, frozen storage fees may apply at the monthly rate of USD 0.026$/kg for the said quantity. Frozen storage fees will be invoiced on the first day of each month for the upcoming month for the quantity that should have been shipped out the previous month and will be invoiced monthly as long as the Products are not all shipped out or been disposed of by Grand Blue under other Grand Blue’s available recourses. Payment terms of the frozen storage fee are Net 30 days from invoicing, payable at the latest on the 30th days from said invoicing.
Invoicing shall be done by Grand Blue according to the Quote. Payment must be made to Grand Blue by wire transfer to Grand Blue’s bank account net of any bank charges. Grand Blue may modify bank details for payment effective upon written notification to the Client.
Payment terms are as provided in the Quote. Grand Blue may also, at its sole discretion, extend a credit facility to the Client for payment of the Products and other possible purchases of products under different purchase agreements between the Parties. The availability of said credit facility applicable overall to this Quote and all other such purchases and the terms and limit of such credit facility shall, at all times, also be subject to the prior and continued discretionary acceptance of Grand Blue’s insurance company, who may withdraw said facility or modify the credit terms and/or the credit limit as its sole discretion, as may Grand Blue itself, without prior notice to the Client.
To avail itself of and maintain access to this possible credit facility, the Client will fully collaborate with Grand Blue and Grand Blue’s insurance company and provide to Grand Blue’s insurance company, in a timely manner all financial, corporate and other information requested. The credit limit, if the credit facility is made available to the Client, shall apply overall to all outstanding invoices under this Quote and for other purchases agreements between the parties. Payment of any amount exceeding such credit limit must be made by the Client and received by Grand Blue prior to processing of the call-off for shipping.
Any default of the Client to make timely payments for Products under this Quote or any default to meet the terms of any credit facility granted to the Client will result, in Grand Blue’s sole discretion, in 1) the forfeiture of the term granted for payment, all unpaid amounts for Products shipped becoming immediately due, 2) the immediate termination of any credit facility granted to the Client as per section 1.9, and 3) Grand Blue availing itself of all other possible recourses, including but not limited to delaying or cancelling the shipping of any remaining quantity of Products, the resale of such remaining quantities of Products to other customers and claiming for the loss of profits generated from such sale to other customers and others costs and expenses incurred by Grand Blue related thereto.
All outstanding payments shall bear interest from the date of invoicing or, if terms of payments have been granted, in such a case from their due date, at the rate of eighteen per cent (18%) annually (1.5% monthly), until full payment is received by Grand Blue.
All sales of Products may be subject to various applicable sales and use taxes, added value taxes and any other tax which may become applicable in the future, all of which, if any, shall apply in addition to the amounts due to Grand Blue. Any anti-dumping or anti-countervailing duties that may become imposed by governmental authorities for the import of the Products purchased by the Client shall at all times be in addition to the purchase price and be payable by the Client or immediately reimbursed by the Client to Grand Blue, upon demand.
All prices and payments are in the currency specified on the Quote.
Grand Blue shall not be held responsible for actual arrival date or actual delivery date of the Products. The shipping schedule provided in this Quote is contingent on the Client having send all compliant and complete call-offs in a timely manner and having provided all additional information and instructions in a timely manner and as specified herein. The Client shall have no right to make any claim against Grand Blue for any late shipping, arrival or delivery of the Products. Without limiting the foregoing, Grand Blue shall not be held responsible for fees accumulated at the port of delivery if the applicable Incoterms provided in the Quote or any agreed to modifications provides for Grand Blue having to deliver the Products to a specific port of delivery.
Grand Blue retains title/ownership of all Products shipped until final payment by the Client. The risk and responsibility for the Products shipped are transferred to the Client in conformity with the Incoterm applicable under this Quote or otherwise later agreed upon in writing by the Parties for any specific call-off. In the event of resale by the Client who has purchased as a wholesaler or distributor for its end-user customers, any moneys, compensation or other considerations received by the Client will be considered to be held “in trust” for Grand Blue’s account.
In addition to any other available recourses, including those of the previous section, in the event that Client fails to provide in a timely manner the necessary compliant and complete call-offs, Grand Blue may, at its sole discretion, without prior notice:
For Products that weren’t shipped by last day of the Shipping Period, invoice in full the unshipped Products that shall become immediately payable by the Client upon receipt of the invoice, with the obligation for the Client to take immediate delivery of the Products;
When shipping of Products is in whole or in part delayed from the shipping schedule, as per section 1.7, for more than 60 days, invoice 25% of the unshipped delayed Products;
Invoice monthly frozen storage fees provided in section 1.7 that shall continue being payable by the Client upon invoicing for each month until the Products have been shipped to the Client;
Cancel further deliveries of unshipped Products and apply a restocking fee of 10% of the price for said unshipped Products, payable by the Client upon invoicing by Grand Blue.
2 – WARRANTY
Any claims on delivered Products must be made in writing to Grand Blue within 75 days from the date on which the Products leave Grand Blue’s premises (in the case the Incoterms indicated as applicable in the Quote is either CIF, CFR or FCA), or within 7 days from the date on which the Products leave Grand Blue’s premises (in the case of any other Incoterms indicated as applicable in the Quote).
Grand Blue may request the Client to return at its own expenses, for inspection purposes, any quantity of Products alleged to be non-conforming Products, as a precondition for the application of the warranty. “Non-conforming Products” means, when used hereunder, any Products that does not meet the specifications contained in Grand Blue’s specification sheet for the Product and indicated in the Quote. If Grand Blue determines the Products to be non-confirming, at its sole discretion, Grand Blue will either reimburse to the Client the price paid for the Products determined to be non-conforming Products or provide an equal quantity of replacement Products and bear transportation costs for returning said replacement Products to the Client.
Grand Blue expressly disclaims any liability for whatever damages, costs, expenses, losses or any other amount whatsoever in relation with a cause other than a non-conforming Product and no warranty whatsoever shall apply, nor recourses shall exist in such other cases. Without limiting the foregoing, no liability or recourses shall exist and no warranty shall apply in any of the following cases:
Improper or faulty handling or storage;
Any negligence, abusive or rough usage, deliberate action, vandalism or damage caused by any object, machine, equipment or component;
Damages caused by accidents, fire, heat, explosion, sand, flood/water damage, lightning, other acts of God and similar events or Force majeure.
Any damage incurred after delivery and transfer of risks of the Product by Grand Blue, under the Incoterms applicable in the Quote, including those resulting from temperatures allowing the Product to unfreeze or degrade, or the contact with any form of contamination, poisoning, bacteria, chemicals or other substances or ingredients. The Product may not be left to unfreeze or maintained at temperatures higher than 0o F (-18o C) until the Product is ready to be immediately conditioned at the Client’s production plant or its end-customer’s plant, as the case may be;
Any alteration, modification or processing performed to the Product after its delivery and transfer of risks, under the Incoterms applicable in the Quote, either by the Client, by the end-customer or by any third person.
Grand Blue, its directors, officers, employees, agents, entrepreneurs and affiliated entities, shall in no event be held liable towards the Client, its end-user customers or towards any other person for any indirect, incidental, consequential, special or punitive damage, or for any damage or cause not expressly stated in this warranty, including for loss of income, profits, goodwill and other tangible or non-tangible assets, and whether based on contract, tort, negligence any other cause of action. Some jurisdictions do not allow the limitation for incidental or consequential damages or on the duration of an implied warranty, which may result in additional recourses being available in those jurisdictions. The foregoing shall apply even if Grand Blue has been advised of the possibility of such damages. Grand Blue’s liability is limited in all cases to the purchase price of the quantity of Product found to be non-conforming Products.
3 – COMPLIANCE WITH APPLICABLE LOCAL LEGISLATION
The Client is responsible for all conformity issues to local laws, regulations and standards of the country in which the Products are to be imported and confirms having provided all information related thereto to Grand Blue prior to Grand Blue having provided this Quote. Non-conformity of the Products, falling under Grand Blue’s responsibility, is limited as per the definition provided in section 2.2.
In case of any modification occurring to local laws, regulations or standards of the country in which the Products are to be imported by the Client, or the enactment of such new laws, regulations or standards, Grand Blue shall not be responsible for losses, costs, expenses incurred by the Client or any third party and resulting from additional formalities, restrictions on import or bans of Products. Grand Blue shall at no time have to replace the Products purchased hereunder, reimburse or provide a credit for Products paid for already, nor provide Products complying with such modified or new laws, regulations or standards.
In the event that any Product fails Client’s government inspection/verification for reasons other than a non- conformity as per the definition of section 2.2 or any reason that is not solely attributable to and under Grand Blue’s sole responsibility hereunder, Grand Blue shall not be responsible for losses, costs, expenses incurred by the Client or any third party, and Grand Blue shall at no time be have to replace the Products purchased hereunder nor reimburse or provide a credit for Products already paid for. Without limiting the foregoing, non-conformities of the Products as per section 3.1 and 3.2 shall not give rise to any claim against or liability of Grand Blue.
4 – FORCE MAJEURE
Grand Blue shall not be responsible/liable for any loss, damage, delay or failure to perform any obligation in all or in part resulting from causes beyond Grand Blue’s control, such as, but not limited to, acts of God, fire, strike, lay- off, band of a product, war, act of terrorism, insurrection, riot, embargo, shortage of motor vehicle, delay in shipping, inability to obtain or delay in obtaining supplies of materials, requirements or regulations of governments or municipal authorities and similar events.
5 – GOVERNING LAW AND SETTLEMENT OF DISPUTES
This contract is considered by all Parties involved to have been made in Sainte-Eulalie, province of Quebec, Canada, and shall be governed by the laws applicable in the province of Quebec. All disputes arising out of or in connection with the present contract, in particular concerning its formation, existence, validity, effects, interpretation, implementation, violation, resolution or annulment, shall be resolved under the exclusive jurisdiction of the competent courts of the province of Quebec, district of Quebec. The Parties agree that the United Nations Convention on Contracts for International Sale of Goods shall not apply to this contract or sales made in relation thereto.