Wholesale Program Terms and Conditions

Last updated: September 18, 2020

These Wholesale Program Terms and Conditions (the “Terms and Conditions”) govern Reseller’s purchase and resale of Products to End Customers. These Terms and Conditions form a binding legal agreement between Reseller and LUS BRANDS INC., an Ontario corporation (“Supplier”). The term “Reseller” refers to the organization that you represent in agreeing to these Terms and Conditions (together with Supplier, the “Parties” and each, a “Party”).

BY REGISTERING FOR A  WHOLESALE ACCOUNT THROUGH THE SUPPLIER WEBSITE, RESELLER ACKNOWLEDGES THAT RESELLER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THESE TERMS AND CONDITIONS, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 13.9. RESELLER REPRESENTS AND WARRANTS TO AND COVENANTS WITH SUPPLIER THAT RESELLER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT.

These Terms and Conditions are entered into as of the date the Reseller completes the Online Registration (the “Effective Date”).

ARTICLE 1
DEFINITIONS

Capitalized terms have the meanings set out in this ARTICLE 1, or in the Section in which they first appear in these Terms and Conditions.

“Approved Salons” mean the salon(s) indicated in the Online Registration and such other salons approved by Supplier from time to time in writing.

“Damaged Goods” means any Product received by Reseller from Supplier under a Purchase Order that on visual inspection, Reseller reasonably determines is damaged.

“End Customer” means the final purchaser that has acquired a Product from Reseller from an Approved Salon for its own internal use and not for resale, remarketing or distribution.

“Governmental Authority” means any federal, provincial, territorial, local or foreign government or political subdivision thereof, or any agency or instrumentality of the government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of this organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.

“Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, award or determination entered by or with any Governmental Authority.

“HST” means harmonized sales tax, or goods and services tax, imposed under the HST Act (or any provincial or territorial legislation imposing sales tax, harmonized sales tax or goods and services tax.

“HST Act” means Part IX of the Excise Tax Act (Canada).

“Law” means any statute, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order or other requirement or rule of law of any Governmental Authority.

“Love Ur Curls Core Products” means those Products identified as such on the Supplier Website.  

“Online Registration” means the online registration form referencing these Terms and Conditions and that is submitted by Reseller on the Supplier Website.

“Personnel” means agents, employees or subcontractors engaged or appointed by Supplier or Reseller.

“Products” means those products that are identified on the Supplier Website.

“Purchase Order” means Reseller’s then-current standard form purchase order.

“Representatives” means a Party’s affiliates, employees, officers, directors, partners, shareholders, agents, counsel, third-party advisors, successors and permitted assigns.

“Supplier’s Premises” means the premises indicated on the Supplier Website or applicable Purchase Order.

“Supplier’s Trademarks” means all trademarks owned by or licensed to Supplier.

“Supplier Website” means the website through which Reseller registers its wholesaler account with Supplier located at lusbrands-wholesale.com.

“Taxes” means any commodity tax, including sales, use, excise, value-added, HST, consumption or other similar tax, including penalties or interest, imposed, levied or assessed by any Governmental Authority.

ARTICLE 2
APPOINTMENT AS RESELLER

2.1 Non-Exclusive Appointment. By completing the Online Registration, Reseller accepts the appointment to act as a non-exclusive reseller of Products to End Customers from the Approved Salons during the Term solely in accordance with these Terms and Conditions.

2.2 Right to Resell Competitive Products. These Terms and Conditions do not preclude either Party from entering into an agreement with any other person related to the sale, resale or distribution of other goods or products, including those that are similar to or competitive with the Products.

ARTICLE 3
GENERAL RESELLER OBLIGATIONS

3.1 Resale Prices. Supplier reserves the right to specify in writing retail prices and/or to establish in writing minimum and/or maximum prices for Products sold by Reseller. Reseller shall sell any such Products at the specified retail prices or, if applicable, in accordance with the minimum and/or maximum retail prices established by Supplier from time to time, unless otherwise authorized by Supplier.  If no retail price or maximum or minimum price has been specified or established by Supplier with respect to a particular Product offered by Reseller, Reseller may sell such applicable Product at any reasonable price Reseller chooses.  Reseller acknowledges and agrees that the specified retail prices and maximum and minimum prices for the Products Reseller and Supplier’s other resellers sell may vary from region to region to the extent necessary in order to reflect differences in costs and other factors applicable to such regions.

3.2 Inventory Requirements. Reseller shall ensure that at all times it has stock of all of the Love Ur Curls Core Products. Reseller is not permitted to stock some but not all of the Love Ur Curls Core Products.

3.3 Marketing and Reselling Products. Reseller shall, in good faith and at its own expense observe all of Supplier’s directions and instructions in relation to the marketing, advertising and promotion of the Products to the extent that these marketing materials, advertisements or promotions refer to the Products or otherwise use Supplier’s Trademarks. Reseller shall not promote, market, sell or distribute Products using promotional information and material (including on the internet and social media), unless the promotional information or material was provided by Supplier.

3.4 Reporting and Record-Keeping. Reseller shall, at its own expense maintain books, records and accounts of all transactions and activities covered by these Terms and Conditions and permit full examination thereof by Supplier and its Representatives.

3.5 General Compliance with Laws. Reseller represents and warrants to and covenants with Supplier that it shall at all times comply with all Laws applicable to these Terms and Conditions, the Products and the operation of its business. Without limiting the generality of the foregoing, Reseller shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licences and permits necessary to conduct its business relating to the exercise of its rights and the performance of its obligations under these Terms and Conditions.

3.6 Product Storage. Reseller shall ensure that the Products are stored at a temperature between five and 30 degrees Celsius at all times.

3.7 Prohibited Acts. Notwithstanding anything to the contrary in these Terms and Conditions, neither Reseller nor Reseller Personnel shall: (a) make any representations, conditions, warranties, guarantees, indemnities, similar claims or other commitments that are additional to or inconsistent with any then-existing representations, conditions, warranties, guarantees, indemnities, similar claims or other commitments in these Terms and Conditions or any written documentation provided by Supplier to Reseller; (b) engage in any unfair, competitive, misleading or deceptive practices respecting Supplier, Supplier’s Trademarks or the Products; (c) sell, either directly or indirectly, any Products to any person online or using an e-commerce site, including Amazon and eBay; or (d) sell, either directly or indirectly, or assign or transfer, any Products to any person when Reseller knows or has reason to suspect that the person may resell any or all of the Products to a third party, including any third party reseller or distributor.

4.1 Purchase Order. Reseller shall issue all Purchase Orders via Supplier’s Website or via email (wholesale@lusbrands.ca). By placing a Purchase Order, Reseller makes an offer to purchase Products under these Terms and Conditions and on no other terms. Any variations made to these Terms and Conditions by Reseller in any Purchase Order are void and have no effect.

4.2 Minimum Purchase Order. Each Purchase Order must include the minimum case pack per SKU ordered.

4.3 Supplier’s Right to Accept or Reject Purchase Orders. Supplier may, in its sole discretion, accept or reject any Purchase Order. Supplier may accept any Purchase Order by confirming the order (whether by written confirmation, invoice or otherwise) or by delivering the Products, whichever occurs first. If Supplier does not accept the Purchase Order under the terms of this Section 3 within 7 business days of Supplier’s receipt of the Purchase Order, the Purchase Order will lapse. No Purchase Order is binding on Supplier unless accepted by Supplier, as provided in these Terms and Conditions.

4.4 Cancellation of Purchase Orders. Supplier may, in its sole discretion, without liability or penalty, cancel any Purchase Order placed by Reseller and accepted by Supplier, in whole or in part.

ARTICLE 5
SHIPPING AND DELIVERY

5.1 Shipment. Supplier may, in its sole discretion, without liability or penalty, make partial shipments of Products to Reseller. Each shipment constitutes a separate sale, and Reseller shall pay for the units shipped, whether the shipment is in whole or partial fulfilment of a Purchase Order.

5.2 Delivery, Title and Risk of Loss. Unless expressly agreed to by the Parties, Supplier shall deliver the Products EXW (Supplier’s Premises) (Incoterms® 2020), using Supplier’s standard methods for packaging and shipping the Products. Unless expressly agreed to by the Parties in writing, Supplier shall select the method of shipment of and the carrier for the Products and Reseller shall be responsible for all costs and expenses related to shipping, including brokerage fees, duties and any import clearance costs. Title and risk of loss to Products shipped under any Purchase Order passes to Reseller on Supplier’s delivery of such Products to the carrier at Supplier’s Premises.

5.3 Late Delivery. Any time that is quoted for delivery is an estimate only; provided, however, that Supplier shall use commercially reasonable efforts to deliver all Products on or before the requested delivery date. Subject to Section 15, Supplier is not liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver or delay in delivery.

5.4 Limited Right of Return. All sales of Products to Reseller under these Terms and Conditions are made on a one-way basis, and Reseller has no right to return Products purchased under these Terms and Conditions.

5.5 Inspection. Reseller shall inspect Products received under these Terms and Conditions within 48 hours of receipt (the “Inspection Period”) of the Products and either accept or, if any Products are Damaged Goods, reject these Products. Reseller will be deemed to have accepted the Products unless it Notifies Supplier in writing of any Damaged Goods during the Inspection Period and furnishes written evidence or other documentation as required by Supplier. If Reseller timely Notifies Supplier of any Damaged Goods, Supplier shall determine, in its sole discretion, whether the Products are Damaged Goods. If Supplier determines that the Products are Damaged Goods and the Damaged Goods were shipped using Supplier’s carrier, Supplier shall either, in its sole discretion: (i) replace the Damaged Goods with non-damaged Products, or (ii) issue Reseller a credit in the amount of the Damaged Goods to be used towards a future purchase of Products.  In the event the Damaged Goods were shipped using Reseller’s carrier, Supplier shall have no obligation with respect to the Damaged Goods and Reseller shall contact its carrier directly to address any remedies. Reseller shall ship, at Reseller’s expense and risk of loss, all Damaged Goods to Supplier’s Premises. If Supplier exercises its option to replace Damaged Goods, Supplier shall, after receiving Reseller’s shipment of Damaged Goods, ship to Reseller, at Supplier’s expense and risk of loss, the replaced Products to Supplier’s Premises. Reseller acknowledges and agrees that the remedies set out in this Section 5.5 are Reseller’s exclusive remedy for the delivery of Damaged Goods.

ARTICLE 6
Price and Payment

6.1 Purchase Price. Reseller shall purchase the Products from Supplier at the prices set out in Supplier’s reseller price list in effect when the Supplier accepts the related Purchase Order (the “Prices”).

6.2 Taxes. 

(a) The Prices are exclusive of all applicable Taxes (including HST and provincial sales tax). Each Party will be responsible for the payment of and will pay any applicable Taxes, duties and levies levied on that Party from time to time in relation to these Terms and Conditions.

(b) Supplier will timely remit all applicable sales, use, value-added, services, consumption and HST charged to the appropriate Governmental Authorities which it is required to collect from Reseller in respect of any Tax referred to in Section 2(a).

(c) Supplier represents, warrants and covenants to the Reseller that: (i) Supplier will charge, collect and timely remit all Taxes that it is required to collect and remit under applicable Law; (ii) Supplier is registered for HST purposes and for provincial sales tax purposes and will be continued to be registered for HST and provincial sales tax purposes; (iii) if any other provincial sales tax is applicable to the goods, Supplier is and will continue to be registered as a vendor for the purposes of such provincial sales tax.

6.3 Payment Terms. Supplier shall issue an invoice to Reseller for each Purchase Order. Reseller shall pay all invoiced amounts due to Supplier on receipt. Reseller shall make all payments in United States dollars using Supplier’s online portal.

ARTICLE 7
Intellectual Property Rights

7.1 Ownership. Subject to the express rights and licences granted by Supplier in these Terms and Conditions, Reseller acknowledges and agrees that any and all Supplier’s intellectual property rights are the sole and exclusive property of Supplier or its licensors. Reseller shall not acquire any ownership interest in any of Supplier’s intellectual property rights under these Terms and Conditions. Any goodwill derived from the use by Reseller of Supplier’s intellectual property rights enures to the benefit of Supplier or its licensors, as the case may be.

7.2 Supplier’s Trademark Licence Grant. These Terms and Conditions do not grant either Party the right to use the other Party’s or their affiliates’ trademarks except as set out under this Section 2. Subject to Supplier’s trademark policies, which may be amended from time to time in Supplier’s sole discretion, and these Terms and Conditions, Supplier hereby grants to Reseller a non-exclusive, non-transferable and non-sublicensable licence to use Supplier’s Trademarks at an Approved Salon during the Term solely on or in connection with the promotion, advertising and resale of the Products in accordance with these Terms and Conditions. Reseller will promptly discontinue the display or use of any trademark to change the manner in which a trademark is displayed or used with regard to the Products when requested by Supplier. Other than the express licences granted by these Terms and Conditions, Supplier grants no right or licence to Reseller, by implication, estoppel or otherwise, to the Products or any intellectual property rights of Supplier.

7.3 Supplier’s Trademark Notices. Reseller shall ensure that all Products sold by Reseller and all related quotations, specifications and descriptive literature, and all other materials carrying Supplier’s Trademark, are marked with the appropriate trademark notices in accordance with Supplier’s instructions.

7.4 No Continuing Rights. On expiration or earlier termination of these Terms and Conditions Reseller’s rights under Section 2 cease immediately and Reseller shall immediately cease all display, advertising, promotion and use of all of Supplier’s Trademarks and shall not thereafter use, advertise, promote or display any trademark, trade or business name or product designation or any part thereof that is similar to or confusing with Supplier’s Trademarks or with any trademark, trade name or product designation associated with Supplier or any Product.

ARTICLE 8
Audit and Inspection Rights

8.1 Audit Rights. On request, during the Term and within one year after the expiration or earlier termination of these Terms and Conditions, Supplier may audit Reseller’s files relating to its sales, marketing and inventory of Products regarding transactions that took place in the immediately preceding 12 months.

8.2 Inspection Rights. During the Term, Reseller shall, on request, make available for physical inspection by Supplier at any time during regular business hours: (a) any and all Products in Reseller’s inventory; (b) the Approved Salons; and (c) any and all documentation required to evidence Reseller’s compliance with these Terms and Conditions.

ARTICLE 9
Term and Termination

9.1 Term. These Terms and Conditions commence on the Effective Date and continue in effect for a period of one year, unless and until earlier terminated as provided under these Terms and Conditions or applicable Law (the “Term”).

9.2 Supplier’s Right to Terminate. Reseller shall be deemed to be in default under these Terms and Conditions, and Supplier may, at its option, terminate these Terms and Conditions effective immediately, without Notice or prior opportunity to cure the default, except as expressly provided, and without any compensation to Reseller: (a) if Reseller wilfully or fraudulently misrepresents any fact, condition or report required to be made by these Terms and Conditions or previously made in any application submitted by Reseller; (b) if Reseller violates any Law, commits any act or becomes involved in any situation or occurrence which, in the opinion of Supplier, would tend to bring Supplier or any if its trademarks or the Products into public disrepute, contempt, scandal or ridicule, would materially adversely affect the reputation or goodwill of Supplier or any of its the trademarks; (c) if Reseller attempts to or makes an unauthorized sale of the Products in violation of Section 7; (d) if Reseller makes any unauthorized alterations to the Product packaging, including decanting Products into smaller bottles to provide as samples; (e) may materially adversely affect the reputation of Supplier or its trademarks; or (f) if Reseller breaches any provision of these Terms and Conditions, and either the breach cannot be cured or, if the breach can be cured, it is not cured by Reseller within 15 business days after Reseller’s receipt of Notice of such breach. Any termination under this Section 9.2 is effective on Reseller’s receipt of Supplier’s Notice of termination or any later date set out in the Notice.

9.3 Other Termination. Either Party may terminate all or any part of these Terms and Conditions immediately upon written Notice to the other Party if the other Party: (i) makes an assignment in violation of these Terms and Conditions; (ii)  ceases to carry on its business, liquidates or dissolves its business or disposes of a substantial portion of its assets; (iii) becomes insolvent or makes an assignment for the benefit of creditors; or (iv) voluntarily or involuntarily becomes the subject of any proceeding relating to bankruptcy, insolvency, receivership, liquidation or other similar proceeding, and, in the case of any such involuntary proceedings, they are not discharged for a period of 60 days. 

9.4 Termination for Convenience. In addition to the other termination rights provided for under these Terms and Conditions, either Party may terminate all or any part of these Terms and Conditions for convenience upon providing the other Party at least 30 days’ prior written Notice.

9.5 Effect of Expiration or Termination. Any Notice of termination under these Terms and Conditions automatically operates as a cancellation of any deliveries of Products to Reseller that are scheduled to be made after the effective date of termination, whether or not any orders for the Products had been accepted by Supplier. Supplier may require, in its sole and absolute discretion, that all sales and deliveries of the Products that are still in transit on termination of these Terms and Conditions be made on either a cash-only or certified cheque or bank draft basis. On the expiration or earlier termination of these Terms and Conditions, Reseller shall promptly: (i) cease to represent itself as Supplier’s authorized reseller regarding the Products, and shall otherwise desist from all conduct or representations that might lead the public to believe that Reseller is authorized by Supplier to sell the Products; (ii) return to Supplier all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on Supplier’s Confidential Information; (iii) permanently erase all of Supplier’s Confidential Information from its computer systems; and (iv) certify in writing to Supplier that it has complied with the requirements of this Section 5.

ARTICLE 10
Confidentiality

10.1 Protection of Confidential Information. From time to time during the Term, either Party (as “Disclosing Party”) may disclose or make available to the other Party (as “Receiving Party”) information about its business affairs, goods and services, Confidential Information and materials comprising or relating to intellectual property rights, trade secrets, third-party Confidential Information, personal information of End Customers and other sensitive or proprietary information; such information, as well as the terms of these Terms and Conditions, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” constitutes “Confidential Information” hereunder. Receiving Party shall (a) protect and safeguard the confidentiality of Disclosing Party’s Confidential Information with at least the same degree of care as Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under these Terms and Conditions; and (c) not disclose any such Confidential Information to any person, except to Receiving Party’s Representatives who must know the Confidential Information to assist Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under these Terms and Conditions. Receiving Party shall be responsible for any breach of this ARTICLE 10 caused by any of its Representatives. The provisions of this ARTICLE 10 shall survive termination or expiration of these Terms and Conditions for any reason. On the expiration or earlier termination of these Terms and Conditions, at Disclosing Party’s written request, Receiving Party and its Representatives shall, under Section 5, promptly return all Confidential Information including copies that it has received under these Terms and Conditions. Confidential Information excludes information that, at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this ARTICLE 10 by Receiving Party or any of its Representatives; (b) is or becomes available to Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of Receiving Party or its Representatives before being disclosed by or on behalf of Disclosing Party; (d) was or is independently developed by Receiving Party without reference to or use of, in whole or in part, any of Disclosing Party’s Confidential Information; or (e) must be disclosed under applicable Law. In the event of any conflict between the terms and provisions of this ARTICLE 10 and those of any other provision in these Terms and Conditions, the terms and provisions of this ARTICLE 10 will prevail.

ARTICLE 11
Representations and Warranties

11.1 Reseller’s Representations and Warranties. Reseller represents and warrants to Supplier that: (a) it is a corporation or limited partnership duly incorporated or formed and validly existing in the jurisdiction of its incorporation or formation; (b) it is duly licensed or registered to carry on business in every jurisdiction in which such qualification is required for purposes of these Terms and Conditions; (c) it has all necessary power and capacity to enter into these Terms and Conditions, to grant the rights and licences granted under these Terms and Conditions and to perform its obligations under these Terms and Conditions; (d) the execution of these Terms and Conditions by its Representative whose signature is set out at the end hereof has been duly authorized by all necessary action of Reseller; and (e) when executed and delivered by each of Supplier and Reseller, these Terms and Conditions will constitute the legal, valid and binding obligation of Reseller, enforceable against Reseller in accordance with its terms.

11.2 Warranties Disclaimer; Non-Reliance. (A) NEITHER SUPPLIER NOR ANY PERSON ON SUPPLIER’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION, CONDITION OR WARRANTY WHATSOEVER, INCLUDING ANY CONDITIONS OR WARRANTIES OF: (i) MERCHANTABILITY; (ii) FITNESS FOR A PARTICULAR OR GENERAL PURPOSE; OR (iii) PERFORMANCE OF PRODUCTS TO STANDARDS SPECIFIC TO THE COUNTRY OF IMPORT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND (B) RESELLER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION, CONDITION OR WARRANTY MADE BY SUPPLIER, OR ANY OTHER PERSON ON SUPPLIER’S BEHALF.

ARTICLE 12
INDEMNIFICATION AND Limitation of Liability

12.1 Indemnification. Reseller shall indemnify, hold harmless, and defend Supplier and its parent, officers, directors, partners, shareholders, employees, agents, affiliates, successors and permitted assigns (collectively, “Supplier Indemnified Parties”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including legal fees, disbursements and charges, fees and the costs of enforcing any right to indemnification under these Terms and Conditions and the cost of pursuing any insurance providers, incurred by a Supplier Indemnified Party, arising out of or relating to any Claim: (a) relating to a breach by Reseller of a term of these Terms and Conditions; (b) alleging or relating to any bodily injury, death of any Person or damage to real or tangible personal property caused by the negligence or wilful misconduct of Reseller; or (c) relating to any failure by Reseller to comply with applicable laws.

12.2 No Liability for Consequential or Indirect Damages. IN NO EVENT WILL SUPPLIER OR ITS REPRESENTATIVES BE LIABLE TO RESELLER FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR AGGRAVATED DAMAGES REGARDLESS OF: (A) WHETHER THE DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT SUPPLIER WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED.

12.3 Maximum Liability for Damages. IN NO EVENT SHALL SUPPLIER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SUPPLIER UNDER THESE TERMS AND CONDITIONS IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

ARTICLE 13
Miscellaneous

13.1 Further Assurances. Reseller shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to these Terms and Conditions.

13.2 Relationship of the Parties. The Parties are independent contractors and nothing in these Terms and Conditions shall be deemed or constructed as creating a joint venture, partnership, agency relationship, franchise or business opportunity between Supplier and Reseller. Neither Party, by virtue of these Terms and Conditions, will have any right, power or authority to act or create an obligation, express or implied, on behalf of the other Party. Each Party assumes responsibility for the actions of their Personnel under these Terms and Conditions and will be solely responsible for their supervision, daily direction and control, wage rates, withholding income taxes, Canada Pension Plan contributions, employment insurance premiums, disability benefits, or the manner and means through which the work under these Terms and Conditions will be accomplished. Except as provided otherwise in these Terms and Conditions, Reseller has the sole discretion to determine Reseller’s methods of operation, Reseller’s accounting practices, the types and amounts of insurance Reseller carries, Reseller’s Personnel practices, Reseller’s advertising and promotion, Reseller’s customers and Reseller’s service areas and methods. The relationship created hereby between the Parties is solely that of Supplier and Reseller.

13.3 Terms of Agreement Prevail over Reseller’s Purchase Order. These Terms and Conditions is expressly limited to the terms of these Terms and Conditions. The terms of these Terms and Conditions prevail over any terms or conditions contained in any other documentation related to the subject matter of these Terms and Conditions and expressly exclude any of Reseller’s general terms and conditions contained in any Purchase Order or other document issued by Reseller.

13.4 Entire Agreement. These Terms and Conditions, and the agreements and other documents required to be delivered pursuant to these Terms and Conditions, including the Online Registration, constitute the entire agreement between the Parties and set out all the covenants, promises, warranties, representations, conditions and agreements between the Parties in connection with the subject matter of these Terms and Conditions and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, pre-contractual or otherwise. There are no covenants, promises, warranties, representations, conditions or other agreements, whether oral or written, pre-contractual or otherwise, express, implied or collateral, whether statutory or otherwise, between the Parties in connection with the subject matter of these Terms and Conditions except as specifically set forth in these Terms and Conditions and any document required to be delivered pursuant to these Terms and Conditions.

13.5 Survival. All obligations of Supplier and Reseller which expressly or by their nature survive termination or expiration of these Terms and Conditions (including Sections 7, 5.4, 5.5, 6.3, ARTICLE 7, ARTICLE 8, ARTICLE 10, ARTICLE 11, ARTICLE 12 and ARTICLE 13) shall continue in full force and effect subsequent to and notwithstanding such termination or expiration and until they are satisfied or by their nature expire.

13.6 Notices. Except as otherwise provided in these Terms and Conditions, all notices, consents and approvals (a “Notice”) permitted or required to be given by any Party hereunder shall be in writing and addressed to the other Party at its address set out below and shall use one of the following methods of delivery: (a) nationally-recognized overnight courier, with such Notice effective at the time delivery is shown in the courier’s records; (b) postage prepaid by registered mail deposited in a post office in Canada, return receipt requested, with such Notice effective upon receipt or upon the date that delivery is attempted and refused; (c) delivered personally, with such Notice effective upon delivery; or (d) transmitted by electronic mail or other form of recorded communication tested prior to transmission, with such Notice effective upon transmission. Notices must be sent: (i) if to Supplier, to the following address:

Notice to Supplier:	155 University Ave, Suite 1240, Toronto, ON M5H 3B7
	Email:	wholesale@lusbrands.ca
	Attention:	Wholesale Channel Manager

and (ii) if to Reseller, to the postal or email address submitted with the Online Registration. Supplier may change its contact information by posting the new contact information on the Supplier Website or by giving notice thereof to Reseller. Reseller is solely responsible for keeping its contact information on file with Supplier current at all times during the Term.

13.7 Interpretation. For purposes of these Terms and Conditions: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to these Terms and Conditions as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in these Terms and Conditions: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, these Terms and Conditions; (y) to an agreement, instrument or other document means the agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means the statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties drafted these Terms and Conditions without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits referred to herein are an integral part of these Terms and Conditions to the same extent as if they were set out verbatim herein. Except as otherwise expressly provided in these Terms and Conditions, all dollar amounts referred to in these Terms and Conditions are stated in United States currency.

13.8 Severability. If any term or provision of these Terms and Conditions is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.

13.9 Amendment and Modification. SUPPLIER MAY UNILATERALLY AMEND THESE TERMS AND CONDITIONS, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING RESELLER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE SUPPLIER WEBSITE. UNLESS OTHERWISE INDICATED BY SUPPLIER, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO RESELLER OR IS POSTED ON THE SUPPLIER WEBSITE (WHICHEVER IS THE EARLIER). RESELLER CANNOT AMEND OR MODIFY THESE TERMS UNLESS SUCH AMENDMENT IS IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SUPPLIER.

13.10 Non-Waiver. The failure of Supplier to exercise any right, power or option given under these Terms and Conditions, or to insist upon the strict compliance with these Terms and Conditions by Reseller shall not constitute a waiver of these Terms and Conditions regarding any other or subsequent breach of such terms and conditions or default under these Terms and Conditions, nor a waiver by Supplier of its right at any time after such breach to require strict compliance with all of these Terms and Conditions.

13.11 Cumulative Remedies. All rights and remedies provided in these Terms and Conditions are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or later be available at Law, in equity, in any other agreement between the Parties or otherwise.

13.12 Assignment. Reseller may not transfer or assign any of its rights or delegate any of its obligations under these Terms and Conditions without the prior written consent of Supplier. Any purported transfer, assignment or delegation in violation of this Section 13.12 is null and void. Supplier shall have the right to directly or indirectly sell, assign, transfer or otherwise dispose of or deal with any or all of its rights and obligations under these Terms and Conditions to any individual, firm, association, bank, lending institution, corporation, partnership or other third party as it may in its discretion deem appropriate. In the event of any such transfer, Supplier shall be released from any liability under these Terms and Conditions for the obligations transferred, except to the extent that such obligations relate to periods prior to such transfer.

13.13 Successors and Assigns. These Terms and Conditions are binding on and enure to the benefit of the Parties and their respective permitted successors and permitted assigns.

13.14 Choice of Law. These Terms and Conditions form a contract made under and shall be governed by and construed in accordance with, the Laws of the Province of Ontario and the federal Laws of Canada applicable in the Province of Ontario. The Parties agree that the United Nations Convention on Contracts for the International Sale of goods does not apply to these Terms and Conditions. Each Party submits to the exclusive jurisdiction of any Ontario courts sitting in Toronto in any action, application, reference or other proceeding arising out of or related to these Terms and Conditions and agrees that all claims in respect of any such actions, application, reference or other proceeding shall be heard and determined in such Ontario courts.

13.15 Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached these Terms and Conditions, for any failure or delay in fulfilling or performing any term of these Terms and Conditions (except for any obligations to make payments to the other Party under these Terms and Conditions), when and to the extent the failure or delay is caused by or results from acts beyond the impacted Party’s (the “Impacted Party”) reasonable control, including the following force majeure events (each, a “Force Majeure Event”): (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) requirements of Law; (e) actions, embargoes or blockades in effect on or after the date of these Terms and Conditions; (f) action by any Governmental Authority; (g) national or regional emergency; (h) strikes, labour stoppages or slowdowns, or other industrial disturbances; (i) shortage of adequate power or transportation facilities; and (j) epidemics and pandemics. The Impacted Party shall give Notice to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of the Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. If the Impacted Party’s failure or delay remains uncured for a period of 90 business days following Notice given by it under this Section 15, either Party may thereafter terminate these Terms and Conditions on 15 business days’ Notice.