1. INTERPRETATION
1.1 “We/us/our” means Photo Booth Direct LTD. We are a company registered in
Toronto,Canada (corporation number 1141203-5) and have our registered office at 40 Wynford Drive Unit 307. Our VAT number is 793830878RC0001
1.2 the following words and expressions apply:
“Business Day”: a day (other than a Saturday, Sunday or public holiday) when banks in Toronto are open for business.
“Contract”: the contract between us and you for the sale and purchase of the Goods in accordance with the Terms.
“Event of Insolvency”: Any event indicating that you may be, or are reasonably likely to become, insolvent including (but not limited to ) commencement of negotiations for rescheduling debts with all or some creditors; filing of a petition for winding up or bankruptcy, appointment of an administrator, administrative receiver or receiver; taking of execution or distress proceedings which remain outstanding for 14 days; or otherwise being unable to pay its debts as they fall due (within the meaning of section 122 Insolvency Act 1986)
“Force Majeure Event”: has the meaning given in clause 9.
“Goods”: the Photo Booth Direct LTD products (or such part(s) of it) as set out in the Purchase Order.
“Intellectual Property”:
Patents, registered designs, trade marks and service marks, domain names, copyright, design right, trading names, rights in and to software including source codes, rights in and to technical information and other confidential information and know-how, rights in and to databases and all other intellectual property rights and similar property rights of whatever nature subsisting in any part of the world.
“Order”: your order for the Goods, as set out in the Purchase Order and/or referred to in your acceptance of the Purchase Order, or overleaf, as the case may be.
“Purchase Order”: the form setting out the particulars of your Order including (but not limited to) the nature, price and quantity of the Goods.
“Terms”: the terms and conditions set out in this document (as amended from time to time) and the Purchase Order.
“you”, “your” the person firm or company who places the Order and
purchases Goods from us.
1.3 A person includes a natural person, corporate or unincorporated body (whether
or not having separate legal personality).
1.4 A reference to a party includes its personal representatives, successors or
permitted assigns.
1.5 A reference to a statute or statutory provision is a reference to such statute or
provision as amended or re-enacted.
1.6 The terms including, include, in particular are illustrative and shall not limit
the sense of the words preceding those terms.
1.7 A reference to writing or written includes faxes and (where expressly stated) e-
mails.2. CONTRACT
2.1 The Terms set out (to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing) the terms and conditions on which any Contract will be formed.
2.2 The Order constitutes an offer by you to purchase the Goods in accordance with the Terms. You are responsible for ensuring that the terms of the Order are complete and accurate. You can notify us if your details subsequently change by contacting us at the address in clause 1.1.
2.3 By submitting an Order you warrant to use that you have all necessary authority to place the Order and are doing so in the course of and for business purposes. In the event this is not the case, you agree to indemnify us against all and any loss, damages, liability and costs we may incur directly or indirectly as a result.
2.4 The Order shall only be deemed to be accepted when we send you an email confirming receipt and acceptance of the Order, at which point and on which date the Contract shall come into existence.
2.5 The Contract constitutes the entire agreement between you and us. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of us which is not set out in the Contract. Once accepted we will retain a copy of the Terms.
2.6 Any samples, drawings, descriptive matter, videos or advertising produced by us and any descriptions or illustrations contained in our catalogues, brochures or website are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have
any contractual force.
2.7 Any quotation for the Goods given by us shall not constitute an offer by us. A
quotation contained in the Purchase Order shall, unless you make an Offer beforehand, only be valid for a period of 20 Business Days from its date of issue.3. GOODS
3.1 We warrant that on delivery the Goods shall be free from material defects in design, material and workmanship.
3.2 Subject to clause 3.3, if:
3.2.1 you give notice in writing to us within 5 Business Days of delivery
pursuant to clause 4.3 that some or all of the Goods do not comply with
the warranty set out in clause 3.1;
3.2.2 we are given a reasonable opportunity of examining such Goods; and 3.2.3 you return such Goods to our place of business (or if requested by us,
make available to a courier) along with all original packaging,
we shall, at our option, repair or replace the defective Goods, or refund the price of the defective Goods in full. These Terms apply to any repaired or replaced Goods.
3.3 We shall not be liable for Goods’ failure to comply with the warranty set out in clause 3.1 in any of the following events:
3.3.1 you make any further use of such Goods after giving notice in accordance
with clause 3.2;
3.3.2 the defect arises because you failed to follow our or any component
manufacturer’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or component parts or (if there are none) good trade practice regarding the same;
3.3.3 you alter or repair such Goods without our written consent;
3.3.4 the defect arises as a result of fair wear and tear, wilful damage,
negligence, or abnormal storage or working conditions;
3.3.5 the defect relates to a component of the Goods subject to a manufacturers warranty under which you are entitled to claim (or would
be entitled to claim but for your actions of omissions); or
3.3.6 the defect relates to your failure to comply with clause 3.6 or other
obligations upon you in the Terms.
3.4 Except as provided in this clause 3, we shall have no liability to you in respect of
the Goods’ failure to comply with the warranty set out in clause 3.1.
3.5 The terms implied by sections 13 to 15 of the Sale of Goods Act, R.S.O. 1990
are, to
the fullest extent permitted by law, excluded from the Contract. 3.6 You shall:
3.6.1 be responsible for all installation and dismantling of the Goods following delivery;
3.6.2 be responsible for ensuring the compatibility of the Goods with any hardware software or other equipment in relation to or in conjunction with which you use the Goods;
3.6.3 follow all oral or written instructions provided by us or any component manufacturer of the Goods or any part therein;
3.6.4 cooperate with us in all matters relating to the Contract;
3.6.5 ensure any of your premises to which the Goods are to be delivered are
suitable for such delivery to be made safely;
3.6.6 retain all packaging in which the Goods are delivered;
3.6.7 not reproduce, copy, reverse engineer or otherwise use the Goods in a
manner which will or might reasonably prejudice or infringe our rights in
the Intellectual Property of the Goods; and 3.6.8 not to use the Goods for any unlawful purpose;
and you shall indemnify and keep us indemnified against all and any loss, damages, costs, liabilities and expenses (including professional fees) that we suffer or incur directly or indirectly as a result of or in connection with your failure to comply with any provisions of clause 3.6.1 to 3.6.8 (inclusive).

4. DELIVERY
4.1 Unless otherwise agreed in writing (or email) by us, we shall arrange for the Goods to be delivered via (at our option) private courier or recorded post to your location set out in the Order or such other location as the parties may agree (Delivery Location), at any time after we notify you (whether by email or otherwise) that the Goods are ready.
4.2 We shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, our reference number, the type and quantity of the Goods, special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
4.3 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location or, if clause 4.7 applies, on the third Business Day after we notify you the Goods are ready.
4.4 Any dates or production times quoted for delivery are approximate only, and the time of delivery is not of the essence. We shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 Subject to clause 4.4, if we fail to deliver the Goods within 3 months of your Order being accepted pursuant to clause 2.4, our liability (if any) shall be limited to the costs and expenses incurred by you in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
4.6 The Goods shall be deemed to have been accepted by you at the earlier of: 4.6.1 you carrying out an inspection of the Goods on or following delivery;
4.6.2 9.00 am on the fifth Business Day after the day on which the Goods were
delivered under clause 4.3; and
4.7 If we have agreed you are to collect the Goods from our premises (in which
case our premises shall be deemed the “Delivery Location” for the purpose of this clause 4) and you fail to collect within 10 Business Days after the day on which we notified you that the Goods were ready, we may resell or otherwise dispose of part or all of the Goods. We shall also be entitled to charge you for related storage costs and expenses during such time as the Goods remain on our premises.
4.8 We may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle you to cancel any other instalment.

5. TITLE AND RISK
The title and risk in the Goods shall pass to you on completion of delivery.

6. PRICE AND PAYMENT
6.1 The price of the Goods shall be the price set out in the Purchase Order.
6.2 We may, by giving notice to you at any time prior to us accepting an Order increase the price of the Goods and notify you of that increase in which case the higher prices shall apply in substitution of those set out in any Purchase Order
not yet accepted by us.
6.3 The price of the Goods is exclusive of the costs and charges of packaging,
insurance, delivery and transport of the Goods, which shall be invoiced to you
as set out in the Purchase Order.
6.4 The price of the Goods is exclusive of amounts in respect of value added tax
(VAT). You shall, on receipt of a valid VAT invoice from us, pay to us such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
6.5 You shall be responsible for any customs duties, clearance charges, taxes, brokers’ fees and other amounts payable in connection with the importation and delivery of the Products
6.6 We may invoice you for the Goods on or at any time after acceptance of your Order pursuant to clause 2.3.
6.7 You shall pay the invoice in full and in cleared funds within 20 Business Days of the date of the invoice or, if earlier, prior to delivery or collection of the Goods. Payment shall be made to the bank account noted on our invoice or otherwise provided by us and time of payment is of the essence.
6.8 Any deposit requested by us shall be paid when you submit the Order and, in the absence of which we shall not be required to commission production of the Goods. The balance shall be paid in accordance with clause 6.87.
6.9 If you fail to make any payment due to us under the Contract by the due date for payment, then you shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank Plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount.
6.10 You shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). We may at any time, without limiting any other rights or remedies we may have, set off any amount owing to us by you against any amount payable by us to you.

7. TERMINATION AND SUSPENSION
7.1 If you become or we believe you are reasonably likely to become, subject to any of the events listed in clause 7.2, we may terminate the Contract with immediate effect by giving written notice to you.
7.2 For the purposes of clause 7.1, the relevant events are:
7.2.1 you suspend or threaten to suspend payment of your debts;
7.2.2 any Event of Insolvency;
7.2.3 any event occurs, or proceeding is taken, with respect to you in any
jurisdiction to which it is subject that has an effect equivalent or similar to
any of the events mentioned in clause 7.2.1 or 7.2.2;
7.2.4 you suspend, threaten to suspend, ceases or threaten to cease to carry
on all or a substantial part of your business;
7.2.5 your financial position deteriorates to such an extent that in our opinion
your capability to adequately fulfil its obligations under the Contract has
been placed in jeopardy; and
7.2.6 (being an individual) you die or, by reason of illness or incapacity
(whether mental or physical), are incapable of managing your own affairs
or becomes a patient under any mental health legislation.
7.3 Without limiting our other rights or remedies, we may suspend provision of the Goods under the Contract or any other contract between you and us if you become subject to any of the events listed in clause 7.2.1 to clause 7.2.6, or we reasonably believe that you are about to become subject to any of them, or if
you fail to pay any amount due under this Contract on the due date for payment. 7.4 On termination of the Contract for any reason you shall immediately pay to us
all of our outstanding unpaid invoices and interest accrued.
7.5 Termination of the Contract, however arising, shall not affect any of the parties’
rights, remedies, obligations and liabilities that have accrued as at termination. 7.6 Clauses which expressly or by implication survive termination of the Contract
shall continue in full force and effect.

8. LIMITATION OF LIABILITY
8.1 Nothing in these Terms shall limit or exclude our liability for:
8.1.1 death or personal injury caused by our negligence, or the negligence of
our employees, agents or subcontractors (as applicable);
8.1.2 fraud or fraudulent misrepresentation;
8.1.3 breach of the terms implied by section 12 of Sale of Goods Act, R.S.O. 1990, c. S.1
8.1.4 defective products under the Consumer Protection Act, 2002; or
8.1.5 any matter in respect of which it would be unlawful for us to exclude or
restrict liability. 8.2 Subject to clause 8.1:
8.2.1 we shall under no circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
8.2.2 our total liability to you in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods subject of that Contract.

9. FORCE MAJEURE
We shall not be liable for delay in performing, or failure to perform, any of our obligations under the Terms if such delay or failure results from events, circumstances or causes beyondour reasonable control (Force Majeure Event). In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non- performance continues for three months, you may terminate this agreement by giving 10 Business Days written notice to us and our liability shall be limited to reimbursing you the price of the Goods.

10. NOTICE
10.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or (where expressly permitted only) by e-mail.
10.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 10.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
10.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

11. MISCELLANEOUS
11.1 We may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of our rights or obligations under the Contract.
11.2 You may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of your rights or obligations under the Contract without our prior written consent.
11.3 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.4 A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy.
11.5 A person who is not a party to the Contract shall not have any rights to enforce its terms.
11.6 Except as set out in these Terms, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by us.
11.7 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of Canada.
11.8 Each party irrevocably agrees that the courts of Canada shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).