iCanpic respects your ownership rights to your photos and
images. We will only use your images to create custom photo art for you. In the
event that we’d like to use your images for other purposes (such as a marketing
campaign), we will contact you beforehand for your permission.
iCanpic respects copyright laws. With that said, it is
impossible for us to check the ownership of every image, so the onus rests
completely with you to obey the law. Please don't copy other people’s work.
Your uploaded photos and images are stored on a secure server.
We hold on to them for 4 weeks in case reprints are required. Thereafter they
are deleted from our server, but may be backed up "offline" in a
secure storage facility.
FULL LEGAL TERMS AND
CONDITIONS
1. Scope
1. These
Standard Terms and Conditions of Sale ("Terms") shall govern the sale
by iCanpic an offering by 925branding + interactive Inc.("iCanpic")
of all goods and/or services as well as all subsequent transactions between iCanpic
and the purchaser ("Purchaser"). Purchaser acknowledges and agrees
that these Terms shall constitute part of any final contract of sale
("Sales Agreement") that may be entered into between Purchaser and iCanpic.
In the event of any inconsistency between the terms and conditions contained in
any other document and these Terms, these Terms shall prevail unless otherwise
agreed upon in writing by iCanpic or its duly authorized representative. iCanpic
shall not be bound by any terms and conditions affixed to Purchaser's purchase
order or other procurement documents that are in addition to or inconsistent
with these Terms. Neither commencement of performance nor delivery by iCanpic
shall be deemed or constituted as acceptance of Purchaser's additional or
conflicting terms and conditions. Terms are subject to change at iCanpic's sole
discretion at any time.
2. SUBJECT OF AGREEMENT.
1. The
subject of this Agreement is the production of prints of images submitted by
Client to iCanpic via an online interface and the printing thereof by iCanpic
and subsequent shipment of finished prints to the Client.
2. iCanpic
is entitled and reserves the right to have all or part of the Service performed
by third parties.
3. Quotations &
Orders
1. Unless
otherwise specified in writing in the attached document, all written quotations
shall be intended for reference purposes only, constituting neither an offer to
sell nor imposing any obligations or liability on iCanpic. All written
quotations and offers to sell automatically expire ten (10) days from the date
quoted unless otherwise specified in the attached documentation. For greater
certainty, all offers to sell are offers by iCanpic to sell to Purchaser on the
terms set forth herein.
2. Unless
otherwise expressly agreed upon in writing by iCanpic, any figures,
measurements, dimensions, performance values, samples, patterns, statements,
technical provisions or specifications, catalogues, brochures, depictions,
photographs, images, models, designs, drawings, promotional materials in print
or electronic format or other descriptive specifications relating to iCanpic's
quotation or offer to sell ("Specifications") are approximations only
and shall not be deemed to form part of any contract or be treated as
constituting any representation, warranty or condition in relation to the goods
or services. iCanpic reserves the right to modify these Specifications at any
time prior to the execution of any Sales Agreement between Purchaser and iCanpic.
3. Any
deviations between the goods supplied and any offers, samples, trial products
and pre-deliveries are permitted in accordance with technical norms and within
standard industry variances and tolerances.
4. No
order placed by Purchaser shall be deemed to be accepted by iCanpic unless and
until confirmed in writing by iCanpic or its duly authorized representative or
until performed by iCanpic. iCanpic reserves the right to accept or decline any
order in whole or in part within thirty (30) days after receipt of Purchaser's
order, during which time the order may only be cancelled, rescheduled or
modified by Purchaser with the prior written consent of iCanpic or its duly
authorized representative. For greater certainty, subsequent requirements of Purchaser
for goods not contained in an original offer to sell or Purchaser's order must
be accepted and confirmed in writing by iCanpic or its duly authorized
representative.
4. Price & Terms of
Payment
1. The
price for all goods and services shall be expressly set out in the Sales
Agreement, delivered in the form of a shopping cart checkout on www.iCanpic.com.
Where no price has been specified, the price shall be based on iCanpic's
pricing listed on the homepage of iCanpic (www.iCanpic.com) on the date that the
Sales Agreement was executed by the Purchaser.. iCanpic reserves the right, by
giving notice to Purchaser at any time, to increase the price of goods and
services to cover: (i) foreign exchange fluctuation and increases in the costs
of labour, materials and manufacturing; and (ii) any delay or change in
delivery dates, quantities or specification of goods and services occasioned or
requested by Purchaser.
2. Unless
otherwise stated in writing by iCanpic, the price of goods shall be EX Works
(Incoterms 2000) and shall be exclusive of any retail sales tax. The price
shall be exclusive of shipping charges, insurance, applicable sale, use or
other taxes payable to any governmental authority, (installation, assembly and
commissioning charges, as well as any other ancillary costs in respect of which
iCanpic shall be entitled to make additional charges ("Additional
Costs").
3. Unless
otherwise agreed upon in writing, iCanpic's invoices shall due for payment
immediately and shipments shall only be made against advance payment. Unless
otherwise agreed upon in writing by iCanpic, all payments shall be in Canadian
Funds and must be made directly to iCanpic in accordance with the payment
options described on iCanpic's website. Unless otherwise agreed upon in
writing, Purchaser shall not have any right of deduction or set-off. Objections
to iCanpic's accounting, account statements, account reconciliations, etc. must
be received in writing by iCanpic within a period of four (4) weeks from the
date of the invoice or other applicable. In the event that Purchaser fails to
provide a timely objection notice to iCanpic, the terms of the invoice or other
document shall be deemed to have been irrevocably accepted by Purchaser.
Notwithstanding the foregoing, iCanpic reserves the right to correct, at any
time, any invoicing errors, including calculation errors, which may arise from
time to time.
5. Delivery of Goods and
Performance of Services
1. Unless
otherwise agreed upon in writing, iCanpic shall deliver goods EX Works
(Incoterms 2000) at any time after iCanpic has notified Purchaser that goods
are ready for delivery by means of an order confirmation notice.
Notwithstanding the foregoing, a maximum delivery period of two (2) weeks
applies from the conclusion of the Sales Agreement. Selection of the carrier
and route of delivery shall be made by iCanpic.. Delivery of goods to a common
carrier or a registered courier shall constitute delivery to Purchaser and risk
of loss shall thereupon pass to Purchaser. In no event shall iCanpic have any
liability in connection with shipment, nor shall the carrier be deemed to be an
agent of iCanpic. Notwithstanding anything contained herein to the contrary, if
the shipment or receipt of goods is delayed for reasons beyond the
responsibility of iCanpic, risk of loss shall pass to Purchaser upon receipt of
an order confirmation notice or other similar document from iCanpic.
2. iCanpic
will use commercially reasonable efforts to deliver goods in the shortest time
possible. However, specific dates and times will not be guaranteed.
3. Unless
otherwise agreed upon in writing by the parties, iCanpic reserves the right to
deliver goods in instalments and/or perform services in stages. Each delivery
of goods shall be treated as a separate transaction and payment thereof shall
be in proportion to the overall purchase price set out in the Sales Agreement.
Delay or failure by iCanpic to deliver an installment and/or perform a stage of
service in accordance with these Terms shall not entitle Purchaser to repudiate
or cancel the delivery of other instalments or stages of goods under the Sales
Agreement.
4. Reminders
and final deadlines must be communicated in writing.
5. iCanpic
shall not be liable to Purchaser for any delay or failure to deliver goods
and/or perform services including but not limited to any cause beyond iCanpic's
reasonable control, including, without limitation, any Act of God, fire,
casualty, flood, earthquake, war, strike, lockout, epidemic, illness or injury
to workers, delayed or failed deliveries by subcontractors, power failure,
damage or destruction of production facilities, riot, insurrection,
transportation delays or defaults, delay in supply or shortages of fuel,
components, raw materials or supplies, labour shortage, acts or omissions of
third parties, action of any governmental authority, or any other cause beyond
the reasonable control of iCanpic (the "Force Majeure"). In such
event, iCanpic must promptly provide Purchaser with written notice of the Force
Majeure. iCanpic's time for delivery and/or performance shall be extended for a
period equal to the time lost by reasons of the Force Majeure without
subjecting iCanpic to any liability or penalty. If the Force Majeure event
lasts longer than forty-five (45) calendar days, iCanpic may immediately
terminate all or part of the Sales Agreement, without incurring any liability
or penalty, by providing written notice of such cancellation to Purchaser.
6. For
greater certainty, iCanpic shall not be liable for any damages, losses, costs
or expenses (collectively, the Damage") resulting from iCanpic's delay in
delivery of goods and/or provision of services to Purchaser unless such Damage
arises from the gross negligence of iCanpic. Notwithstanding the foregoing,
where the gross negligence of iCanpic causes a delay in the delivery of the
goods or provision of services, Purchaser's sole remedy shall be the payment of
compensation equal to half of a percent (0.5%) per week up to a maximum of five
percent (5%) of the value of the portion of the delivery which cannot be used
on time for its intended purpose as a result of the delay.
7. Because
of variations in equipment, paper, inks and other conditions, reasonable
variations in color between the original submitted digital image and the print
produced by iCanpic must be expected. Prints delivered with variations of his
kind shall be considered as acceptable performance.
6. Inspection and
Acceptance of Goods and Services
1. Notwithstanding
(i) payment, (ii) passage of title, or (iii) prior inspection or tests, all
goods and services furnished under Sales Agreement shall be subject to
Purchaser's right of inspection and acceptance upon delivery.
2. Goods:
Following delivery and within three (3) calendar days of receipt of goods by
Purchaser, Purchaser shall provide iCanpic with a written notice containing the
full details of any alleged defect or non-conformity in goods ("Rejection
Notice"). Purchaser may return rejected goods to iCanpic at Purchaser's
risk and expense and in accordance with iCanpic's instructions. iCanpic shall
make the final determination as to whether its goods are defective or
non-conforming. Purchaser's exclusive remedy and iCanpic's entire liability to
Purchaser in the event of a rejection shall be expressly limited to either the
prompt replacement of the goods, the repair of any defect or non-conformity or,
at iCanpic's option, the issuance of a credit or refund for the purchase price
of the defective or non-conforming goods. Notwithstanding the foregoing, in the
event that Purchaser fails to provide a timely Rejection Notice to iCanpic,
Purchaser will be deemed to have irrevocably accepted goods. Moreover, the use
of any goods by Purchaser, its agents, employees or licensees, for any purpose
after delivery thereof, shall constitute irrevocable acceptance of goods by
Purchaser.
7. Title
1. Title
to and ownership of all goods shall not pass to Purchaser until payment of the
purchase price and any Additional Costs has been made in full to iCanpic.
8. Content of the image
files, damage of third party rights
1. The
Purchaser is solely responsible for the content of any submitted image files.
2. The
customer warrants, that he will not submit any image file that infringes any
patent, trademark, copyright or other intellectual or proprietary right of any
party. The customer could be liable to pay substantial claims for
indemnification by a third party for infringing copyright laws. The customer is
liable for all consequences of violation of aforementioned rights and
indemnifies iCanpic from all liability.
3. When
executing a Purchase Agreement, the Purchaser is responsible for ensuring that
all uploaded image files do not violate any law, especially laws related to
child pornography. iCanpic reserves the right to report any images that iCanpic
judges as potential violations of the law to the applicable authorities.
9. Security Interest and
Solvency
1. Purchaser
represents and warrants to iCanpic that Purchaser is solvent. ICanpic retains a
security interest in goods to secure payment of the purchase price and all
other indebtedness and obligations that Purchaser now and in the future owes to
iCanpic. Purchaser shall take all actions that iCanpic requests to perfect, and
to obtain and maintain first priority of, that security interest, and Purchaser
shall pay, or reimburse iCanpic for, all fees, taxes and other costs that are
incurred in connection with those actions. To the extent permitted by law,
Purchaser waives requirement of being provided with a copy of any financing or
verification statement or renewal thereof.
10. Changes and
Cancellation
1. No
Sales Agreement which has been executed by iCanpic may be cancelled or amended
by Purchaser except with the approval in writing of iCanpic and on terms that
Purchaser shall indemnify iCanpic in full and on demand against all loss
(including loss of profit), costs (including the cost of all labour and
materials used, as well as accounting, legal and clerical costs), damages,
charges and expenses incurred by iCanpic as a result of the cancellation or
change.
2. There
is no right to cancel an executed Sales Agreement in which goods were custom
produced as per the customer's specification, or were clearly designed for the
customer's personal need.
11. Limited Warranty
1. Except
as otherwise specified herein, iCanpic warrants that: (i) all goods and
services purchased hereunder are free from defects in material and workmanship
and conform to the requirements of Sales Agreement; (ii) iCanpic has good title
to goods and the right to sell them to Purchaser; and (iii) goods and services
shall conform to the written Specifications, if any, described in the Sales
Agreement.
2. Unless
otherwise agreed upon in writing, the warranty period for all goods delivered
by iCanpic will expire three (3) calendar days after the date of the delivery
of goods to the Purchaser (the "Warranty Period"). If Purchaser
believes that the goods and/or services are defective or deficient, Purchaser
shall provide iCanpic with a written notice by letter, fax or e-mail,
containing the full details of the alleged defect or deficiency and setting out
the date of the order confirmation, the delivery confirmation or the invoice
(the "Rejection Notice"). At iCanpic's direction, Purchaser shall return
the defective or deficient goods to ICanpic at Purchaser's risk and expense and
in accordance with iCanpic's return policy in effect from time to time, failing
which any and all warranty obligation on iCanpic's part shall become void. iCanpic
shall promptly investigate such claimed breach and shall, at its sole
discretion and within thirty (30) days of the date of the Rejection Notice
either: (i) provide information to Purchaser confirming that no breach of
warranty has in fact occurred; or (ii) advise Purchaser of iCanpic's planned
corrective action. If iCanpic determines that the Rejection Notice was given
without cause, Purchaser shall reimburse iCanpic for all applicable costs and
expenses thereby occasioned to iCanpic. If a breach of warranty has in fact
occurred, iCanpic shall, at its sole discretion, promptly: (i) repair or
replace the defective goods at no additional cost to Purchaser; (ii) issue
credit or refund amounts paid by Purchaser related to the portion of goods
and/or services in breach of warranty; or (iii) unless the defect in question
is a minor one, cancel the Sales Agreement. All costs incidental to repairing
or replacing defective goods or correcting or re-performing the deficient
services shall be borne by Purchaser and in no event shall iCanpic be liable
for such costs. All warranty repairs or replacements and any services that have
been re-performed or corrected under warranty shall only be warranted for the
balance of the original Warranty Period.
3. Notwithstanding
anything contained herein to the contrary, where iCanpic is required to perform
corrective work, ICanpic's warranty shall be limited to the goods actually
delivered. iCanpic shall only warrant the proper functionality of its products
and components where the faulty functioning in question cannot be attributed to
incorrect or incomplete information provided by Purchaser.
4. Purchaser
shall not be entitled to withhold payments on account of warranty claims or
other counter-claims not recognized by iCanpic.
5. Warranty
Exclusions: This warranty excludes normal wear and tear and ordinary deviations
in size, weight or quality. This warranty also excludes coverage for used goods
and seconds as well as goods not manufactured by iCanpic or its affiliates.
Repair or replacement of goods and/or re-performance or correction of services
due to: (i) misuse or abuse; (ii) improper use or maintenance; (iii) failure to
observe instructions contained in user/owner manuals; (iv) mishandling or
testing by Purchaser, its affiliates and agents; (v) negligence; (vi)
alterations, maintenance or repair work undertaken by Purchaser or third
parties; (vii) excessive stress; (viii) accident; (ix) improper storage; (x)
use of incompatible supplies or cleaning agents; (xi) an event of Force
Majeure; (xii) chemical influences; (xiii) foreign object damage; or (xiv)
damage in transit, are excluded from iCanpic's warranty obligations.
6. The
preceding paragraphs set forth the exclusive remedy for all claims based on
failure of, or defect in, goods sold hereunder, whether the failure or defect
arises before or during the warranty period, and whether a claim, however
instituted, is based on contract, indemnity, warranty, tort (including
negligence), strict liability or otherwise. Upon the expiration of the warranty
period, all such liability shall terminate. Unless otherwise agreed in writing
by iCanpic, this warranty shall not be assigned to any third party. THE
FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER
WRITTEN, ORAL, IMPLIED OR STATUTORY. NO IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR PARTICULAR PURPOSE SHALL APPLY. ICanpic DOES NOT WARRANT ANY GOODS
OR SERVICES OF OTHERS, WHICH PURCHASER HAS DESIGNATED.
12. Limitations of
Liability
1. ICanpic'S
LIABILITY WITH RESPECT TO ALL CLAIMS OF ANY KIND, WHETHER BASED ON CONTRACT,
INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
OTHERWISE, FOR ALL LOSSES OR DAMAGES ARISING OUT OF, CONNECTED WITH, OR
RESULTING FROM THIS AGREEMENT, OR THESE TERMS AND CONDITIONS, OR FROM THE
PERFORMANCE OR BREACH THEREOF, OR FROM ANY GOODS OR SERVICES COVERED BY OR
FURNISHED UNDER THE AGREEMENT OR ANY EXTENSION OR EXPANSION THEREOF (INCLUDING
REMEDIAL WARRANTY EFFORTS), SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE
SPECIFIC GOODS OR SERVICES THAT GIVES RISE TO THE CLAIM. ALL SUCH LIABILITY
SHALL TERMINATE UPON THE EXPIRATION OF THE WARRANTY PERIOD SPECIFIED ABOVE.
2. IN NO
EVENT, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL iCanpic, ITS EMPLOYEES,
AGENTS, SUPPLIERS AND AFFILIATES BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE,
EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF
PROFITS OR REVENUE, LOSS OF USE OF ANY PROPERTY, COST OF CAPITAL, COST OF
PURCHASED POWER OR ENERGY, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR
SERVICES, BUSINESS INTERRUPTION COSTS, DOWNTIME COSTS, INJURY TO PERSON OR
PROPERTY OR DEATH, OR CLAIMS OF PURCHASERS OF PURCHASER FOR SUCH DAMAGES OR
LOSSES, AND PURCHASER WILL INDEMNIFY iCanpic, ITS EMPLOYEES, AGENTS, SUPPLIERS
AND AFFILIATES AGAINST ANY SUCH CLAIMS FROM PURCHASER'S PURCHASERS. IF
PURCHASER RESELLS GOODS SOLD HEREUNDER TO ANY THIRD PARTY WHO IS NOT A CONSUMER
OF iCanpic'S GOODS, PURCHASER SHALL OBTAIN FROM SUCH THIRD PARTY A PROVISION
AFFORDING iCanpic AND ITS SUPPLIERS THE PROTECTION OF THE PRECEDING SENTENCE.
Any action or suit by Purchaser against iCanpic relating to the Sales Agreement
of the goods and/or services covered hereby must be brought within one (1) year
of the date of invoice for such goods or services. The parties hereto
acknowledge and agree that this is a commercial transaction.
13. Indemnification
1. Purchaser
shall indemnify, defend and hold harmless iCanpic from and against all claims,
demands, causes of action (including third-party claims), losses, damages,
expenses (including consequential and incidental damages, court costs and
attorney fees) and liabilities of every kind and nature that iCanpic incurs as
a result of Purchaser's breach of any of Purchaser's obligations under the
Sales Agreement and/or these Terms.
14.
Confidentiality/Intellectual Property
1. Purchaser
retains ownership of the Content and Images uploaded to iCanpic. iCanpic
warrants that Content and Images will not be used for any purpose other than
the creation of custom goods for the Purchaser without the direct consent of
the Purchaser.
2. All
technical information and/or Specifications, etc. supplied by iCanpic in
connection herewith shall be treated as strictly confidential by Purchaser and
must not be made available to any third party both prior to and after execution
of Sales Agreement and delivery of goods and/or provision of services without
the prior written consent of iCanpic.
3. iCanpic
expressly reserves all right, title and interest in any documents,
Specifications, and other technical information provided to Purchaser in
connection with Sales Agreement, quotation, offer to sell, installation,
service, or repair of goods sold, and Purchaser shall return same to iCanpic
upon request.
4. To the
extent that goods are supplied in accordance with Purchaser's Specifications or
statements (collectively, the "Statements"), Purchaser represents and
warrants that such Statements do not infringe any third party intellectual
property rights. Purchaser agrees to indemnify iCanpic in respect of any claim
for intellectual property infringement by a third party resulting from the use
of the Statements by iCanpic.
15. Notice
1. Any
notice, approval, consent, waiver, or other communication to be given hereunder
shall be in writing and shall be deemed to be given if delivered personally, or
sent by registered mail in which case such notice, approval, consent, waiver or
other communication shall be deemed to be received on the second business day
following the mailing thereof by registered mail to:
925branding+interactive Inc.
c/o iCanpic
60 Absolute Ave., Suite 1507,
Mississauga, ON L4Z0A9
and to Purchaser at such
mailing address, telephone, facsimile, or email address provided by Purchaser.
16. Language
1. These
Terms and any document relating thereto have been prepared in the English
language at the express request of the parties. Les parties exigent, et par les
présentes confirment leur demande, que ce contrat et tous les documents y
afférents soient rédigés en anglais seulement.
17. Entire Agreement
1. These
Terms and any document relating thereto contain the entire agreement between
Purchaser and iCanpic and shall not be altered or amended except by written
instrument signed by both parties.
18. Applicable Law and
Jurisdiction
1. These
Terms and any document relating thereto shall be governed by and interpreted
according to the laws of the Province of Ontario and applicable federal laws of
Canada, without reference to its choice of law rules and excluding the United
Nations Convention on the International Sale of Goods, and either party shall
bring any action that arises out of or relates the Sales Agreement and/or these
Terms in any court in Toronto, Ontario, that has jurisdiction over the subject
matter.
19. Jury Waiver
1. These
Terms and any document relating thereto shall be governed by and interpreted
according to the laws of the Province of Ontario and applicable federal laws of
Canada, without reference to its choice of law rules and excluding the United
Nations Convention on the International Sale of Goods, and either party shall
bring any action that arises out of or relates the Sales Agreement and/or these
Terms in any court in Toronto, Ontario, that has jurisdiction over the subject
matter.
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