URBAN CAPSULE SALE AND PURCHASE AGREEMENT
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This Urban Capsule Sale and Purchase Agreement is made by and between TRANSGLOBAL TRADING INC., doing business as and trading under the name Urban Capsule, an Ontario company with its headquarters located at 92 Caplan Ave, Suite 653, city of Barrie, ON L4N 9J2 Canada (hereinafter referred to as the “Company”) and the client identified in the Order Confirmation and intending to purchase the Product (hereinafter referred to as the “Client”).
WHEREAS, the Company manufactures and sells prefabricated office pods to be installed and maintained in home and residential back yards as permitted by local municipal bylaws.
WHEREAS the Company wishes to sell to the Client, and the Client wishes to purchase one (1) or more Products (as hereinafter defined) from the Company, subject to the terms and conditions of this Urban Capsule Sale and Purchase Agreement.
WHEREAS, the Parties wish to set down the terms and conditions that shall govern the purchase, installation, shipping and warranty applicable to the Products to be purchased by the Client from the Company.
NOW THEREFORE, in consideration of the premises set forth herein, the mutual covenants and terms herein contained, the Parties hereto agree as follows:
1. Definitions
The following capitalized terms, when employed in this Agreement, including the above recitals, shall have the meanings set forth below, unless the context requires otherwise:
“Agreement” means the present Urban Capsule Sale and Purchase Agreement and includes any and all schedules, amendments, modifications and supplements made hereto.
“Business Day” means any day, other than a Saturday, Sunday or any other day on which the principal chartered banks located in the city of Barrie (Province of Ontario) are not open for business during normal banking hours.
“Reservation Fee” means the fixed sum of one hundred Canadian dollars ($ 100.00 CAD) payable by the Client to the Company upon the execution of this Agreement to confirm the order of the Product. Reservation Fee is non-refundable.
“Production Deposit” means percentage of the total Purchase Price which is equals to fifty percent (50%) of the total Purchase Price payable by the Client to the Company within thirty (30) days upon the execution of this Agreement.
“Dispute” means any dispute, demand, controversy or claim between the Parties arising out of or relating to this Agreement, the Product, the Warranty, or any matter contemplated by this Agreement.
“Effective Date” means the date of the signature of this Agreement by both Parties.
“Force Majeure” means any situation or circumstance beyond a Party’s reasonable control. Force Majeure may include, without limitation, government orders, the breakdown or failure of production or transportation facilities, the unavailability of raw materials, acts of God, pandemics, strikes, lockouts, industrial disturbances, riots, floods, hurricanes, fires and other natural disasters.
“Laws” means all statutes, laws, regulations, by-laws, orders, rules, requirements, policies and directions of all federal, provincial, municipal and other governmental authorities and other public authorities having jurisdiction.
“Order” means the order for the Product placed by the Client by way of a purchase order issued to the Company or by way of an order placed via the Company’s online store.
“Order Confirmation” means the confirmation of the Order issued by the Company pursuant to its receipt of the Client’s Order. The Order Confirmation shall specify the Product(s) ordered, the applicable Purchase Price, the payment terms, the anticipated delivery date, the start date and duration of the Warranty and all other specifications relating to the Order.
“Purchase Price” means the total sum payable by the Client to the Company to purchase the Product under this Agreement. The Deposit shall be calculated as part of the Purchase Price.
“Parties” means the Company and the Client collectively, and “Party” means any one of them.
“Product” means URBAN Capsule, an office pod designated to be placed on the Client’s residential property. The Product is intended to be used as an Accessory Structure (as further defined) to the Client’s residence or property.
“Warranty” means the warranty on the Product offered by the Company and subject to the terms, conditions, limitations and exclusions explicitly set forth in this Agreement.
2. Purpose
Subject to the terms and conditions of this Agreement, the terms contained in the Order Confirmation, and in exchange for the payment of the Purchase Price, the Company agrees to sell, assign and transfer the Product to the Client. The Product shall be supplied to the Client at the time and date determined by the Parties and according to the terms and conditions of this Agreement. The installation, shipping and delivery of the Product to the Client shall be governed by the terms of this Agreement, unless otherwise agreed between the Parties. In addition, the payment of the Purchase Price, the applicable payment terms and the Parties’ obligations, including, without limitation, the Company’s refund policy and Warranty shall be set forth in this Agreement.
3. Products
The Product consists of an office pod to be installed and maintained in home and residential back yards, as permitted by local municipal bylaws. A complete description of the Products is available for review on the Company’s website. The Company’s website and marketing materials feature images of and specifications applicable the Products. The information published on the Company’s website and as part of marketing materials is for reference purposes only, to provide a blue print of the Product, thereby allowing the Client to determine if the Products’ description meets the Client’s needs.
While the Company has employed reasonable efforts to ensure the Product descriptions, images and specifications are accurate, the Company cannot guarantee that the Product ordered shall fully comply with the specifications. The Company cannot guarantee that the Product delivered pursuant to this Agreement shall be an exact replica of the images presented on the Company’s website. The images and specifications of the Product provided by the Company shall serve as blue print, and shall not be construed as a guarantee of the exact same outcome for the Client. Consequently, the Client agrees not to rely exclusively upon the Product images and specifications listed on the Company’s website to render a decision with respect to the purchase thereof.
4. Order Policy
The Client shall issue an Order by way of a purchase order or by placing an order on the Company’s online store. The Order shall specify the quantity and delivery date requested. Every Order placed by the Client shall be made in writing and submitted to the Company (i) on the Company’s online store, (ii) to the Company’s headquarters by overnight express mail, (iii) virtually by email to the Company’s email address or by filling out online form as identified on its website, or (iv) using any other method authorized by the Company in accordance with the terms of this Agreement.
The Client’s Order for the Product shall be valid and binding once confirmed in writing by the Company in an Order Confirmation. The Order Confirmation shall be delivered to the Client by way of email. The terms in the Order Confirmation, including the Purchase Price, shall be binding and enforceable against the Client. The Client may not modify any quantity, cost, the Purchase Price or specification in the Order Confirmation.
5. Purchase Price
Upon and subject to the terms and conditions hereof, and to acquire the Product, the Client hereby agrees and undertakes to pay the Company the total Purchase Price, in accordance with the payment terms set forth in this Agreement.
The Purchase Price payable by the Client shall be confirmed in the Order Confirmation submitted by the Company. The Purchase Price shall be exclusive of all sales, use, and excise taxes, charges and levies. It shall be the Client’s sole responsibility to pay the applicable Harmonized Sales Tax (HST) and other taxes in connection with the Purchase Price paid, in accordance with Subsection 5.2 of this Agreement.
5.1. Payment Terms
Unless otherwise specified by the Company in the Order Confirmation, the Client shall be responsible for paying the Reservation Fee to the Company upon the execution of this Agreement or within five (5) Business Days of the Effective Date. The Reservation Fee shall be in the amount of one hundred Canadian dollars ($ 100.00 CAD). The Initial Deposit shall not be applied by the Company towards the payment of the total Purchase Price. Reservation Fee is non-fundable and used for payable by the Client to the Company upon the execution of this Agreement to confirm the order of the Product.
The Reservation Fee may be paid by the Client on the Company’s website. The Client agrees to pay the Reservation Fee using any major credit card or his/her PayPal Account. The Deposit shall be final and may not be refunded to the Client except in accordance with the terms of Section 6 herein.
Following the payment of the Reservation Fee, the Company shall email request to the Client to pay Production Deposit, which is equal to fifty percent (50%) of the of the Purchase Price owed to the Company to the email address provided by the Client within thirty (30) calendar days from the time of execution of this agreement. It is the Client’s responsibility to verify and ensure the email address provided to the Company is the Client’s current and valid email address.
Following the payment of the Production Deposit, the Company shall email the balance of the Purchase Price owed to the Company to the email address provided by the Client. It is the Client’s responsibility to verify and ensure the email address provided to the Company is the Client’s current and valid email address.
Unless otherwise stated in the Order Confirmation, the Client shall pay the balance of the Purchase Price to the Company prior to the scheduled shipment and delivery of the Product. The balance of the Purchase Price may be paid using any authorized method of payment. The Company accepts payments made by certified cheque payable to the Company and mailed to the Company’s headquarters (as set out in the cover page of this Agreement). The Client may also pay the remainder of the Purchase Price by wire transfer in accordance with the Company’s banking instructions. If the Client elects to finance the purchase of the Product, the Client may pay the balance of the Purchase Price by certified funds or wire transfer. All payments by the Client shall be made in full on or prior to their due dates, without deductions or set-offs of any kind.
In all cases, the full payment of the Purchase Price must be received and acknowledged by the Company prior to the delivery of the Product.
5.2 Taxes
The Client shall be solely responsible for the payment of all applicable taxes, fees, or other governmental charges that may be imposed, collected, or charged in connection with or arising out of the payment of the Purchase Price to the Company. Any such taxes, fees, and governmental charges shall be paid by the Client and the Client agrees to indemnify and hold harmless the Company from any claims, actions, proceedings, lawsuits and obligations in connection therewith.
6. Refund Policy
The Client may cancel the Order, subject to an Order Confirmation, within five (5) Business Days of the issuance of the Order Confirmation. To cancel the Order, the Client shall notify the Company in writing, either by submitting a request on the Company’s online store or by sending the Company an email requesting the cancelation.
Provided the Company receives the cancelation request within five (5) Business Days of the submission of the Order Confirmation, the Company shall effectively cancel the corresponding Order placed by the Client. The Company reserves the right to refuse to cancel an Order if the parts and Product have already been manufactured, in full or in part, specifically for the Client. In such cases, the Company shall notify the Client and the Client shall be required to a percentage of the Purchase Price to cover the costs of the materials and the Product manufacturer, upon reasonable justification provided by the Company.
7. Shipping and Delivery
The Company shall not authorize the shipment or transport of the Product ordered by the Client without having received the full Purchase Price. The title, right and interest to and in the Product sold hereunder shall remain with the Company, until the full and complete payment by the Client for such Product. Once the Client has paid the Company for the Products, the title, right and interest shall be transferred from the Company to the Client.
The shipment and delivery of the Product shall be scheduled within ninety (90) days of the Company’s full receipt of the Purchase Price. The delivery date shall be selected by the Company, subject to its availability and that of its third-party contractors. Upon selecting a date for the delivery, the Company shall notify the Client of the expected delivery date by email or by telephone call, and shall await the Client’s approval prior to confirming the delivery date and shipment.
Prior to the shipment of such Product, the Company shall ensure the Product is functional and operational at the Company’s storage facility prior to the packaging and shipment thereof.
Unless otherwise indicated by the Company, the shipment of the Product to the Client’s residential address shall be handled exclusively by a mandated third-party contractor. The Company shall select the third-party contractor. The Company shall ensure the mandated third-party contractor holds a valid liability insurance policy with a minimum coverage of five million Canadian dollars ($ 5 MLN) per incident. The Company shall not be responsible for any errors, damages, loss, or defects occurring during or as a result of the transport of the Product from the Company’s facilities to the Client’s residential address listed in the Order Confirmation. In the event that there is a damage or loss sustained or occurring due to the transport and shipping, the Client may notify the Company for information purposes, however, the Company shall not be liable for the same.
The Client acknowledges and understands that the shipment and delivery of the Product shall require a crane. Prior to the scheduled delivery, the Client shall ensure its residential area contains a designated area for the crane and delivery truck (the “Designated Area”), which may be parked on the Client’s driveway or within close proximity to the Client’s driveway. Insofar as reasonably practicable and provided the usage thereof is limited in time, the Designated Area may consist of a neighboring property or of city roads or areas that are not the Client’s property. Further, the Client guarantees that by parking the crane and the delivery truck within the Designated Area of the Client’s property, the third party contractor shall not violate any municipal Law, infringe any third party property right, or encroach on a third party’s property, except with the third party’s consent. The Client shall ensure the Designated Area remains cleared, tidy and accessible for the third party contractor on the scheduled delivery date.
In addition to preparing the Designated Area for the third party contractor to place the crane and park the delivery truck, the Client shall secure an area for the Product to be installed in the backyard of the Client’s residential property. The mandated third party shall install of the Product for the Client’s benefit. The Client may elect to perform the installation of the Product on his or her own, however, by doing so, the Client agrees to proceed at his or her sole risk, thereby accepting all liability for damages, injuries loss, defects or issues to the Product, the Client’s property, any adjacent properties, roads, premises or injuries to any person arising out of or as a result of the Client’s installation of the Product. Moreover, by performing the installation by himself/herself, the Client voids the Warranty applicable to the Product, as set forth in this Agreement.
8. Electrical Requirements
The Client acknowledges and understands that the Product shall require an electrical connection to the Client’s residence to properly function. Such electrical connection shall be at minimum 30 AMP breaker accompanied by an appropriate wire gage to the outside socket. The Company recommends for the Client to engage a licensed electrician in the Province of Ontario to perform the required wiring to ensure the Client’s residence is electrically compatible with the Product’s requirements for optimal performance. Prior to the delivery of the Product, the Client shall ensure the electrical connection ranging from the Client’s residence to the Product complies with the minimal requirements set forth in this Agreement. In the event that the Client does not comply with the minimal electrical requirements or that the Client has installation performed by a third party other than a licensed electrician, the Client shall effectively void the Warranty applicable to the Product. The Client further agrees to bear all risks, costs and expenses in connection with the electrical requirements and the electrical installations contemplated in this Section.
9. Municipal By-Laws and Zoning
The Client shall abide by all Laws, rules, regulations, by-laws, decisions, directions, dues and assessments, policies and acts of the provincial authorities, federal authorities, local authorities and municipal authorities, without limitation, and all applicable legislation with respect to municipal zoning. The Client shall, at all times, remain fully compliant with all such Laws, regulations, government acts, by-laws and directions.
Prior to the delivery of the Product detailed in Section 7 of this Agreement, the Client shall be responsible for determining the exact location of the Product on the Client’s property. In selecting the exact location for the Product, the Client shall observe and comply with, and obtain all necessary permits, licenses, consents and approvals pursuant to any applicable Laws, including zoning by-laws, environmental Laws and civil Laws, including any amendments thereto and any successor or replacement legislation. The Client shall indemnify and hold the Company harmless from and against any and all fines, claims, costs, losses, damages and expenses of any nature whatsoever resulting or arising from any failure of the Client to do so. Upon request by the Company, the Client shall provide evidence satisfactory to the Company that the Client has obtained, at its expense, all necessary consents, permits, licenses and inspections from all governmental and regulatory authorities with respect to the exact location of the Product.
In the event that the location of the Product fails to comply with any Laws, any requirements set forth in this Agreement or any authority having jurisdiction, the Client shall be solely responsible for the payment of relocation costs, government fines, fees, and penalties, to the Company’s full and complete exclusion.
10. Building Permit Exemptions
If the Product exceeds ten (10) meters squared (the equivalent of one hundred eight (108) square feet), the Client may be required to apply for and obtain a building permit. Most municipalities in the Province of Ontario do not require a building permit for accessory structures similar to the Product. If such is the case in the municipality of the Client’s residence, the Client may benefit from a building permit exemption. Prior to the delivery and the shipment of the Product, the Client shall be solely responsible for verifying all municipal and building Laws applicable in the municipality of its residence with respect to obtaining a valid building permit exemption or securing such a permit in accordance with applicable Laws. The Company shall not be responsible for verifying if a building permit is required in the Client’s municipality prior to delivering and shipping the Product.
The verification and application and securing of a building permit under applicable Ontario Laws shall be the responsibility and cost of the Client. The Client agrees to complete all work necessary to file an application for and secure a building permit, if required, pursuant to applicable building code and Laws. The Company shall not be liable for nor shall the Company accept to return the Product if the Client did not comply with the building permit requirements applicable in the Client’s municipality. Nothing in this Section 10 shall be interpreted as limiting or excluding the Client’s obligation to comply with all applicable Laws as set out in Section 9 herein.
11. Product Use and Maintenance
The Product is categorized as an accessory building or structure. It is intended to be detached from the Client’s residence or property, and shall remain subordinate and incidental the Client’s primary residence. It is strictly prohibited to use the Product for human habitation or animal occupancy. Any usage of the Product by the Client which is prohibited by this Agreement or by the Product’s user manual shall void the Warranty offered by the Company.
The Client shall, at all times and at its sole cost, keep and maintain the Product in good working order, and first-class condition. The Client shall ensure proper temperature and moisture levels are consistently maintained in the Product on an ongoing basis, without interruption. The operational temperature level in the Product should be maintained between five (5) and thirty (30) degrees Celsius at all times.
Following the purchase of the Product, the Company may provide recommendations to the Client with respect to the usage and maintenance of the Product. The Client shall be responsible for applying all recommendations provided by the Company with respect to the Product, the usage thereof and its maintenance. The Client shall also comply with all instructions set forth in the Product’s user manual.
12. Warranties and Representations of the Parties
The Company makes the representations and gives the warranties stipulated in this section to the Client:
The Company has the necessary power and authority to execute this Agreement and to perform the obligations hereunder.
Other than the consents, approvals or notices detailed in this Agreement, the Product is transferable and assignable to the Client by the Company without payment of penalties, impositions of restrictions or other adverse effects of any kind.
The Client makes the representations and gives the warranties stipulated in this section to the Company and acknowledges that the Company is relying upon such representations and warranties to enter into this Agreement:
The Client has the necessary power and authority to execute this Agreement and to perform the obligations hereunder.
The Client is not a party to, bound or affected by or subject to any agreement, regulation, order, judgment or law which would be violated, contravened or breached by, or under which any default would occur as a result of the execution of this Agreement or the purchase of the Product.
The Client confirms having sufficient funds to satisfy all the payments required by the terms of this Agreement on the due dates set forth herein.
13. Product Warranty
The present Section shall set forth the terms, conditions, limitations and exclusions applicable to the Warranty offered by the Company. Unless otherwise provided by the Company in writing, no other terms, agreements, arrangements or discussions, except for the present Section 13 and this Agreement, shall apply to the Warranty. The Warranty shall be governed by the terms, conditions, restrictions and exclusions set forth in this Section 13 and this Agreement. The Company shall not be bound by any other agreements with respect to the Warranty.
The Warranty shall be effective as the commencement date stated in the Order Confirmation transmitted by the Company to the Client. The Order Confirmation shall further specify the duration of the Warranty. In no cases shall the Warranty extend beyond one (1) year for general material and workmanship defects, and one (1) year for structural damages, including the deformation of the Product’s structural frame.
The Warranty shall not apply to: (i) any wear and tear of the materials forming the Product, and (ii) the Client’s misuse of the Product, including, without limitation, not maintaining the required operational temperature and moisture levels inside the Product, the penetration of moisture through open windows, doors, spilling water or other substances on the Product’s floor, cabinetry, furniture or accessories. In any of the aforementioned scenarios, the Warranty shall be null and void for the Client.
To benefit from the Warranty, the Client shall prepare a written claim to be submitted to the Company. Any such claim shall specify the damage or defect affecting the Product, and such claim be detailed, complete and accurate. The claim shall contain all information and photos pertaining to the damage or defect claimed, and all data requested by the Company.
By submitting a Warranty claim, the Client hereby represents and warrants to the Company as follows: (i) the Client is the owner of the Product and such Product has been validly purchased from the Company, (ii) the information provided by the Client in the Warranty claim is true, accurate, complete and thorough to the best of the Client’s knowledge, (iii) the Client has paid all sums due to the Company for the Product and agrees to pay all subsequent sums due under the present Warranty, (iv) the Client acknowledges that all claims submitted under this Warranty shall be subject to the terms of this Agreement, (v) the Client shall comply with all instructions provided by the Company with respect to the Warranty, any claim, repair, replacement or otherwise connected to the Product and the Warranty, and (vi) the Client shall await the Company’s confirmation prior to proceeding with repairs, replacement or otherwise relating to the Product, and the Client acknowledges that the Company shall not be responsible for covering any repairs, replacement or otherwise incurred prior to the Client’s receipt of a written confirmation from the Company to the effect that the Warranty claim was approved.
The Company shall review the claim and its supporting documentation within a reasonable delay of its receipt of such. The Company reserves the right to inspect, or mandate a third party to inspect the Product to verify the defect or damage claimed and the cause of such defect or damage. The determination of the cause of the defect or damage shall be made by the Company or its authorized representatives, at the Company’s sole discretion. The Company shall then advise the Client if the claim is covered by the present Warranty. The Company shall refuse the Warranty claim submitted by the Client if the Company determines that (i) the damage or defect consists of wear and tear, (ii) the Warranty was voided under any provision of this Agreement or (iii) the Product was not properly maintained, stored, or used by the Client or by any party using the Product.
In the event of an approved claim, the Company shall schedule a service visit to the Client’s property. The Client shall permit the Company’s authorized representative to access the Client’s residential property and the Product. The Company’s representative shall assess the Product or proceed with the repair the Product at the Company’s cost. If the Client denies the Company or the Company’s authorized representative access to the Client’s property and the Product on two (2) or more occasions, the Warranty shall be voided without notice or delay.
The Company shall not be responsible for covering any repairs or replacement made by a repair facility or other third party if the Client has not obtained the required consent and an approved claim from the Company. The Client agrees to release the Company from any and all liability in the event of repairs and/or replacements to the Product that are not subject to an approved claim as set forth in this Section.
14. Third Party Contractors
Unless otherwise requested by the Client and subsequently approved by the Company, the Company shall select the third party contractor responsible for shipping and installing the Product at the Client’s residence. Further, the Company may recommend electricians working in the Province of Ontario to perform electrical work for the Client’s benefit. The Client acknowledges that such third party contractors and electricians are separate entities from the Company. The Company shall not be responsible for any claims, damages, losses, injuries or lawsuits involving the contractors and the Client.
15. Indemnification
The Client agrees to indemnify and hold the Company, its agents, employees, officers, directors, contractors, and affiliates harmless from and against all losses, damages, liabilities, costs and expenses in connection with any claims, actions, proceedings, investigations or suits brought by a third party, arising out of (i) the Client’s negligence, recklessness or intentionally wrongful act(s), (ii) any violation, contravention or breach of any covenant, agreement or obligation of the Client under this Agreement; (iii) any incorrectness in any representation or warranty made by the Client in connection with this Agreement; or and/or (iv) the Client’s execution or non-performance of its obligations under this Agreement.
16. Limited Liability
In no event shall the Company’s aggregate liability arising out of or in any way related to this Agreement and to the Product exceed fifty percent (50%) of the total amount paid by the Client to the Company during the preceding six (6) months.
In no event shall the Company be liable to the Client for any direct, indirect, special or consequential loss or damages arising from the Client’s installation and/or usage of the Product. The Company shall not be liable for any potential or actual damages or loss to the Product, the Client’s residence or any other adjacent property caused by electrical connections between the Client’s residence and the Product, or affecting the Product. Further, the Company disclaims full liability for any potential or actual damages or loss to the Product, the Client’s property, the adjacent property, the city’s property or any equipment arising out of the delivery, craning and movement of the Product by the third-party contractor or if performed by the Client.
In consideration of the usage of the Product, the Client hereby releases waives, discharges, and holds harmless the Company, its agents, employees and affiliates from any and all liability, claims, demands, actions and causes of action whatsoever arising out of or related to any loss, damage, or injury that may be sustained while using the Product or due to the misuse of the Product by the Client.
17. Force Majeure
Notwithstanding anything to the contrary contained in this Agreement, if the Company is bona fide delayed or hindered in or prevented from the performance of any term, covenant or act required hereunder by reason of strikes, labour troubles, inability to procure materials, power failures, governmental acts or regulations, riots, insurrection, acts of God, any other Force Majeure event or other reason whether of a like nature or not which is not the fault of the Company delayed in performing work or doing acts required under the terms of this Agreement, then the performance of such obligation, covenant or act shall be excused for the period of the Force Majeure event. The Company shall be entitled to perform such obligation, covenant or act within the appropriate time period after the expiration or termination of the Force Majeure event. The provisions of this Section shall not be construed as excusing the Client from the prompt payment of the Purchase Price to the Company or any other payments required under this Agreement.
18. Dispute Resolution
Prior to undertaking any legal proceeding against the other Party, the Parties shall make reasonable efforts to resolve all Disputes informally, including by means of a conference between the Parties. In good faith, each Party shall use its best efforts, which shall be no less than commercially reasonable efforts, to resolve the Dispute. During a Dispute, the Client shall continue to make payments not in dispute.
If the Dispute is not settled promptly through negotiation between the Party, the Parties may submit the Dispute to arbitration. The arbitration proceedings shall be administered in the Province of Ontario, unless otherwise indicated by the Company. The arbitration award shall be made in writing.
If the arbitration proceedings are unsuccessful in resolving the Dispute, the unresolved Dispute shall be submitted to the competent court located in the Province of Ontario. If any litigation proceeding is commenced in connection with this Agreement, the prevailing Party, as determined by the court, shall be entitled to reasonable attorneys' fees (including allocated costs for in-house legal services), costs and necessary disbursements incurred in such action or proceeding.
19. General Provisions
19.1 Preamble
The preamble hereto is incorporated herein by reference and deemed to be an integral part of this Agreement.
19.2 Severability
Any section, subsection or other subdivision of this Agreement or any other provision of this Agreement which is, or becomes, illegal, invalid or unenforceable shall be severed from this Agreement, and shall be ineffective to the extent of such illegality, invalidity or unenforceability and shall not affect or impair the remaining provisions hereof, which provisions shall (i) be severed from any illegal, invalid or unenforceable section, subsection or other subdivision of this Agreement or any other provision of this Agreement, and (ii) otherwise remain in full force and effect.
19.3 Entire Agreement
This Agreement, together with the Order Confirmation and other documents to be delivered under this Agreement, constitute the entire agreement between the Parties pertaining to the subject matter of this Agreement and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties. There are no warranties, representations or other agreements between the Parties in connection with the subject matter of this Agreement except as specifically set forth in this Agreement. No supplement, modification or amendment to this Agreement and no waiver of any provision of this Agreement shall be binding on any Party unless executed by such Party in writing. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision (whether or not similar) nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
19.4 Choice of Law
This Agreement shall be governed by and interpreted and construed in accordance with the Laws of the Province of Ontario and the Laws of Canada applicable therein (excluding any conflict of laws rule or principle, foreign or domestic, which might refer such interpretation to the Laws of another jurisdiction) and shall be treated in all respects as an Ontario contract.
19.5 Business Days
Whenever any action or payment to be taken or made under this Agreement shall be stated to be required to be taken or made on a day other than a Business Day, any payment shall be made or such action shall be taken on the next succeeding Business Day.
19.6 Statutory Instruments
Unless otherwise specifically provided in this Agreement any reference in this Agreement to any law, by-law, rule, regulation, order, act or statute of any government, governmental body or other regulatory body shall be construed as a reference to those as amended or re-enacted from time to time or as a reference to any successor to those.
19.7 Notices
Any notice, consent, authorization, direction or other communication required or permitted to be given hereunder shall be in writing and shall be delivered either by personal delivery or by telecommunication device (return receipt requested) and addressed to the Parties at their respective addresses.
Any notice, consent, authorization, direction or other communication delivered as aforesaid shall be deemed to have been effectively delivered and received, if sent by email, overnight express mail or similar telecommunications device on the Business Day next following receipt of such transmission (confirmation of receipt being deemed receipt of communication sent by telecopy or other telecommunications device) or, if delivered, to have been delivered and received on the date of such delivery provided, however, that if such date is not a Business Day then it shall be deemed to have been delivered and received on the Business Day next following such delivery. Any Party may change its address for service by written notice delivered as aforesaid.
19.8 Assignment
Neither of the Parties may assign all or part of their rights and obligations hereunder to any person, without the prior written consent of the other Party. Notwithstanding the foregoing, this Agreement shall be binding upon the Company’s successor should the Company change ownership or otherwise be acquired or transferred, whether by sale, merger or otherwise.
19.9 Electronic Signatures
This Agreement may be executed by the Parties in digital form and if so executed and transmitted, this Agreement shall be as effective as if the Parties had delivered and executed an original manual Agreement. The Client acknowledges and confirms that checking the acceptance box below shall constitute the Client’s legal signature, thereby confirming the Client’s acknowledgment and agreeance with the entirety of the terms set forth in this Agreement. The Client’s checking of the acceptance box shall signify the Client’s acceptance of this Agreement and intention to be bound by the terms thereof. The Client acknowledges that the Client shall be subject to this Agreement as though the Client manually signed this Agreement.
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