STANDARD TERMS AND CONDITIONS OF SALE
- Definitions
1.1. In these conditions, “Rubicon” shall mean Rubicon Publishing Inc. of 2040 Speers Road, Oakville, Ontario L6L 2X8 or its duly appointed agent; “Purchaser” shall mean the original purchaser of Goods from RUBICON; and “Goods” shall mean the books, products, services, or other articles sold by RUBICON.
- General
2.1. All sales by RUBICON to Purchaser are governed by and subject to these Standard Terms and Conditions of Sale, as amended from time to time by RUBICON. These Standard Terms and Conditions of Sale, along with any relevant invoice, purchase order, or other such agreement between RUBICON and Purchaser, collectively form a binding agreement between RUBICON and Purchaser. Any deviations from these Standard Terms and Conditions of Sale are binding and enforceable against RUBICON only if made in writing and signed by an authorized officer of RUBICON. RUBICON rejects any terms or conditions contained in Purchaser’s purchase order or other documents that are in conflict or inconsistent with these Standard Terms and Conditions of Sale and any such terms and conditions shall be without force or effect. If Purchaser has not otherwise agreed to these terms, Purchaser’s acceptance of delivery of, or full or partial payment for, the Goods will constitute Purchaser’s acceptance of these Standard Terms and Conditions of Sale.
2.2. All Goods are sold firm, unless otherwise agreed upon in writing, and are subject to the condition that they shall not, by way of trade or otherwise, be lent, resold, hired out, or otherwise circulated in any form of binding or cover other than that in which they are published, without RUBICON’s prior consent, and such lending, reselling, hiring out, or other circulation shall have all terms and conditions set out herein imposed on the subsequent purchaser.
2.3. RUBICON is not bound by an order until accepted by RUBICON in writing or by shipping the Goods to Purchaser. RUBICON may elect not to accept an order if, in its judgment, RUBICON will be unable to meet the requested delivery date or to fill the requested quantity or type of products ordered. RUBICON may also elect not to accept an order in its sole discretion. There shall not be implied into the terms of these Standard Terms and Conditions of Sale, or any related document, any continuing obligation to supply Purchaser after fulfillment of each order, and no notice period shall be required to be given by RUBICON should RUBICON decide to cease selling to Purchaser.
2.4. Any reference in these Standard Terms and Conditions of Sale to any provision of a statute shall be confirmed as a reference to that provision as amended, re-enacted, or extended.
- Publication Date
3.1. New books/titles sold by RUBICON to Purchaser shall not be sold by Purchaser before the advised publication date.
- Prices
4.1. Prices are subject to alteration by RUBICON at any time up to and including the date of invoice. Sales taxes will be charged additionally at the rate current at the date of invoice on all sales where RUBICON must account for sales tax.
4.2. All quotations or estimates given by RUBICON are subject to RUBICON’s confirmation of its acceptance of an order and to availability of the Goods. Unconfirmed quotations or estimates shall lapse 30 days after issue, unless otherwise agreed to in writing by RUBICON.
- Discount and Credit Terms
5.1. All Goods are supplied subject to the discount, credit terms, and credit limits separately agreed to by RUBICON and Purchaser and in force at the date of the invoice. RUBICON reserves the right to exercise complete discretion in respect of credit facilities, which may be withdrawn without notice.
5.2. Any claim relating to the price of Goods as stated on the invoice and, in particular, a claim that the invoice price does not match the quotation or other agreed-upon terms must be notified by Purchaser to RUBICON within 30 days of receipt of the Goods.
- Quantities and Editions
6.1. RUBICON will make every effort to supply the exact quantities of Goods ordered but reserves the right where necessary to vary the quantities, for example, in cases of special production or to conform to printers pack quantities. RUBICON may deliver against any order hereunder up to five percent (5%) in excess or an unlimited percentage in deficiency of the amount specified for the delivery in question, provided that as regards such excess or deficiency, RUBICON shall make a corresponding adjustment in the amount payable by Purchaser, who shall accept and pay for the actual quantity supplied. Unless Purchaser has specifically requested otherwise, Goods that RUBICON is unable to supply immediately will be dispatched to Purchaser when available without further notice to Purchaser.
6.2. Where Purchaser does not specify which edition of a book or other product is required and there is more than one, RUBICON will normally supply the cheapest available. No variation by RUBICON in the manufacture or design of any Goods will constitute a breach of contract or impose any liability upon RUBICON.
- Physical Delivery
7.1. For qualifying orders, Goods will be delivered to Purchaser’s usual place of business (or another location within Canada as arranged with Purchaser), and Purchaser will be billed for freight. The means of transport shall be completely at RUBICON’s discretion unless Purchaser has arranged otherwise.
7.2. Time for Delivery
7.2.1. RUBICON will use its reasonable endeavours to meet any agreed-upon delivery date but does not guarantee to do so. Time is not of the essence, unless expressly so agreed in writing by RUBICON.
7.2.2. RUBICON may deliver all of the Goods at one time or in portions from time to time. Each delivery of any part of an order will be deemed to constitute a separate, enforceable contract to which these Standard Terms and Conditions of Sale will apply. If Purchaser causes or requests a delay in the manufacture or delivery of any Goods, Purchaser shall reimburse RUBICON for all resulting damages, including without limitation payment of reasonable storage expenses for the Goods during the period of delay or interruption.
- Defective Goods
8.1. Purchaser shall inspect the Goods within seven days after their delivery and shall give written notification to RUBICON of any shortages or manufacturing faults revealed by that inspection.
8.2. RUBICON will replace such Goods as it agrees to be faulty provided that such replacement can be made from current stock.
8.3. If replacement cannot be made from stock, RUBICON will record a backorder for supply on arrival of new stock or, if so requested, credit the invoice value of any faulty Goods to Purchaser.
- Claims for Loss and Damage in Transit
9.1. Purchaser shall notify RUBICON in writing (otherwise than by qualified signature on the carrier’s consignment note or delivery document) in respect of any loss, damage, or delay to the Goods within the following time limits:
9.1.1. for loss from a package or for damage to a consignment or any part thereof: verbally within 72 hours of the date of delivery of the consignment or part consignment, followed by a valued claim in writing within 30 days after the termination of transit;
9.1.2. for loss, misdelivery, or non-delivery of the whole of a consignment or of any separate package forming part of a consignment: within 72 hours of Purchaser becoming aware of any non-delivery, followed by a valued claim in writing within 30 days after the commencement of transit.
9.2. In computing the above time limits, Saturdays, Sundays, and public holidays shall not be counted. In the event of a late claim causing prejudice to RUBICON, RUBICON shall be relieved of all and any liability in respect of such a claim.
- Returns
10.1. Returns can be made only if they are authorized in accordance with the current RUBICON Returns Policy, copies of which are available upon request.
10.2. Undelivered Goods or unauthorized returns shall be liable for handling and storage charges if received at RUBICON.
- Risk and Title
11.1. Legal and beneficial ownership in the Goods shall not pass to Purchaser until payment in full is received by RUBICON (in cash or cleared funds) in respect of the following:
11.1.1. all sums due to RUBICON in respect of the Goods and
11.1.2. all other sums outstanding from Purchaser to RUBICON on any account, although risk of loss shall pass to Purchaser upon delivery of the Goods to Purchaser. Purchaser consents to RUBICON’s use of any written agreement between Purchaser and RUBICON, as well as Goods invoices, as financing statements for protecting the security interest in the Goods and appoint RUBICON as Purchaser’s agent for service of process.
11.2. If payments received from Purchaser are not stated to refer to a particular invoice, RUBICON may appropriate such payments to any outstanding invoice.
11.3. Until ownership of the Goods has passed to Purchaser, Purchaser shall:
11.3.1. hold the Goods on a fiduciary basis as RUBICON’s bailee;
11.3.2. store the Goods (at no cost to RUBICON) separately from any Goods belonging to Purchaser or any third party in such a way that the Goods are clearly marked and identifiable as being RUBICON’s property, and
11.3.3. not destroy, deface, or obscure any identifying mark or packaging on or relating to the Goods.
11.4. RUBICON shall be entitled to enter Purchaser’s premises (or Purchaser’s agent’s premises where that agent is storing Goods on Purchaser’s behalf) either:
11.4.1. upon reasonable notice to inspect the Goods or to verify Purchaser’s compliance with this subclause; or
11.4.2. to repossess any Goods owned by RUBICON so as to discharge any sums owed to RUBICON or enforce the provisions of Clause 16.
11.5. Purchaser may resell the Goods before ownership has passed to it solely on the following conditions:
11.5.1. any sale shall be effected in the ordinary course of Purchaser’s business; and
11.5.2. any such sale shall be a sale of RUBICON’s property on Purchaser’s own behalf and Purchaser shall deal as principal when making such a sale.
11.6. If:
11.6.1. Purchaser fails to make any payment to RUBICON when due, or
11.6.2. Purchaser charges or encumbers the Goods, or
11.6.3. Purchaser proposes to compound with its creditors or has a bankruptcy petition presented against it, or
11.6.4. Purchaser enters into voluntary or compulsory liquidation or a receiver, an administrator, or administrative receiver is appointed over any or all of its assets or Purchaser takes or suffers similar action, or
11.6.5. any event occurs that under the law of any relevant jurisdiction has an analogous effect to any of the events set out above, or
11.6.6. RUBICON has reasonable cause to believe that any of these events is likely to occur, then Purchaser’s right to possession of the Goods will terminate immediately and RUBICON shall have the right, without prejudice to any other remedies:
11.6.7. to enter, without notice, any premises of Purchaser where Goods owned by RUBICON may be and to repossess and dispose of any Goods owned by RUBICON so as to discharge any sums owed to RUBICON by Purchaser for Goods and in respect of any other matters, and/or
11.6.8. to require Purchaser not to resell or part with possession of any Goods owned by RUBICON until Purchaser has paid in full all sums due to RUBICON for the Goods, and in respect of any other matters, and/or
11.6.9. to withhold delivery of any undelivered Goods and stop any Goods in transit.
11.7. Where RUBICON is unable to determine whether any Goods are the Goods in respect of which Purchaser’s right to possession has terminated, Purchaser shall be deemed to have sold all Goods of the kind sold by RUBICON to Purchaser in the order in which they were invoiced to Purchaser.
- Insurance
12.1. Until ownership of the Goods has passed to Purchaser, Purchaser shall maintain the Goods in satisfactory condition and shall maintain comprehensive general liability insurance, including without limitation products liability insurance, in an amount equal to the full price of the Goods, with an insurance company having a Best rating of A, to the reasonable satisfaction of RUBICON. On request, Purchaser shall produce the policy of insurance to RUBICON and shall hold the proceeds of an insurance payout, if any, in trust for RUBICON and not mix them with any other money nor pay the proceeds into an overdrawn bank account.
- Payment and Interest
13.1. Payment shall be net cash according to the terms separately agreed-upon between RUBICON and Purchaser in accordance with Clause 5 or shall be made before delivery if so required by RUBICON.
13.2. Payment by debit or credit card is subject to RUBICON’s prior approval and a handling fee, further details of which are available on request.
13.3. Non-payment of accounts on or before the due date or the exceeding by Purchaser of any credit limit shall entitle RUBICON to stop all deliveries and to terminate any contract or commitment in respect of undelivered Goods. Evidence of the amount due to RUBICON shall be as per the relevant paper or onscreen statement of account or alternatively suitable certificate under signature of the RUBICON credit or finance manager to Purchaser’s last known address. Should RUBICON not receive full payment by the due date, Purchaser shall, without any need for RUBICON to give notice, become liable to pay interest on the overdue amount at a rate of four percent (4%) per annum above the prime rate of TD Canada Trust from the due date for payment until payment is received (before as well as after judgment). Any partial payments will be first credited against interest due. No claim by Purchaser (whether by way of set-off, counterclaim, or otherwise) against RUBICON shall entitle Purchaser to withhold payment of the whole or any part of invoices due for settlement. Costs incurred by RUBICON in recovery of any debt shall be payable by Purchaser, including agents’ commission, solicitors’ fees, and charges incurred under the jurisdiction of a court of RUBICON’s choice.
13.4. RUBICON reserves the right to invoice Goods that are not immediately supplied but are reserved for consolidation in order to secure economic freight costs.
- Cancellation of Orders
14.1. Once dispatched, Goods must be accepted and paid for by Purchaser and notice of cancellation will not be accepted.
- Libel
15.1. RUBICON reserves the right to withdraw from Purchaser any Goods that are the subject of a libel action, or for any other reason at RUBICON’s complete discretion, and to forbid the resale of any Goods that RUBICON’s Purchaser has purchased. RUBICON undertakes to bear the expense of the return of such items and also to credit Purchaser with the purchase price. RUBICON completely disclaims responsibility for the continuing sale of Goods that RUBICON has asked to be withdrawn, and any such responsibility will pass to Purchaser acting in defiance of RUBICON’s instructions.
15.2. Purchaser shall co-operate fully in any withdrawal (at the expense of RUBICON) by RUBICON of any Goods pursuant to this clause 15 and shall give all reasonable assistance requested by RUBICON in recovering the Goods and preventing their sale to third parties.
- Ethical conduct
16.1. Purchaser undertakes to RUBICON that in relation to any business conducted in relation to RUBICON products:
16.1.1. it will not offer, give, or receive bribes or inducements for any purpose whether directly or through a third party;
16.1.2. it will always behave ethically when competing for Purchasers’ business and when placing business with suppliers; and
16.1.3. it will not offer financial inducements to public officials.
- Amendments
17.1. RUBICON reserves the right to alter or amend these Standard Terms and Conditions of Sale generally or for any particular sale of Goods. Purchaser should refer to the latest Standard Terms and Conditions of Sale, which are available upon request or from RUBICON’s website: www.rubiconpublishing.com.
17.2. RUBICON should be notified in writing of any change to Purchaser’s ownership or legal or financial status.
- No Waiver
18.1. RUBICON has all rights and remedies given to sellers by applicable law, and RUBICON’s rights and remedies are cumulative and may be exercised from time to time. Failure by RUBICON to enforce any of the provisions hereof shall not be construed as a waiver of its rights nor prejudice RUBICON’s right to take subsequent action. No waiver by RUBICON of any right shall be a waiver of any future exercise of that right.
- Force Majeure and Liabilities
19.1. No liability shall attach to RUBICON for loss or damage or delivery delays or failure to manufacture or supply Goods arising from factors outside its reasonable control, including but not limited to acts of God, acts or omissions of civil or military authority, war, fire, flood, nature, disasters, labour disputes, plant breakdown, shortage of supplies, or compliance with orders lawfully given by any public authority.
19.2. The express terms of these Standard Terms and Conditions of Sale together with any other terms expressly agreed to by RUBICON set out Purchaser’s remedies in the event that the Goods prove defective or are not delivered on time, or RUBICON is otherwise in breach of contract.
19.3. In any event, RUBICON’s liability under or in connection with the supply of the Goods, whether in contract, tort, breach of statutory duty, or otherwise, shall not, except where expressly provided for in these Terms or where such liability cannot be excluded or limited by law, exceed the price paid by Purchaser for the Goods.
19.4. To the extent permitted by law, any action by Purchaser against RUBICON for breach of any obligation of RUBICON to Purchaser or for any other claim arising out of or relating to the Goods or their design, manufacture, sale, or delivery, must be brought within one (1) year after the cause of action accrues.
19.5. To the fullest extent permitted by law, Purchaser shall indemnify, defend, and hold harmless RUBICON, its subsidiaries, affiliates, parents, successors, and assigns, and their respective officers, directors, agents, and employees, from any claim, demand, cause of action, debt, or liability (including without limitation reasonable legal fees, expenses, and court costs) that relates to: (a) Purchaser’s breach of its representations or any failure to comply with its obligations to RUBICON; (b) Purchaser’s negligence; (c) Purchaser’s failure to abide by all applicable laws, rules, regulations, and orders; (d) damage to any person or property to the extent such claim is based on Purchaser’s modification, misuse, or abuse of the Goods; or (e) intentional harm to any person or property caused by Purchaser. Indemnified claims, debts, and liabilities include the amount of any discount in price or concession that is made available by RUBICON to you.
19.6. All Goods are sold by RUBICON “AS IS, WHERE IS.” RUBICON DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PURCHASER IS SOLELY RESPONSIBLE FOR DETERMINING THE PROPER APPLICATION AND USE OF THE PRODUCTS. TO THE EXTENT PERMITTED BY LAW, RUBICON SHALL HAVE NO TORT LIABILITY TO PURCHASER WITH RESPECT TO ANY OF THE GOODS AND SHALL NOT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES ARISING FROM ANY PRODUCT DEFECT, DELAY, NON-DELIVERY, OR OTHER BREACH. PURCHASER AGREES THAT FOR ANY LIABILITY ARISING FROM OR RELATED TO THE PURCHASE OF ANY GOODS, RUBICON IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AGGREGATE DOLLAR AMOUNT PAID BY PURCHASER TO RUBICON FOR SUCH GOODS THAT CAUSED THE LIABILITY, TO THE EXTENT PERMITTED BY LAW. THE REMEDIES SET FORTH IN THESE STANDARD TERMS AND CONDITIONS OF SALE SHALL APPLY EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE. PURCHASER SHALL HAVE NO RIGHT OF REJECTION OR REVOCATION OF ACCEPTANCE OF THE GOODS.
- Use and Disclosure of Purchaser’s Information
20.1. RUBICON and Purchaser undertake to each other that they will comply with all privacy and personal information laws insofar as they relate to the sale of Goods by RUBICON to Purchaser. In the event of a security incident affecting our systems that involves your personal information, we will notify you as required by applicable law using the most effective means of direct communication, including but not limited to email, phone, or as outlined in any agreement between the parties.
20.2. Purchaser agrees that RUBICON may disclose its information to licensed credit reference agencies in order to carry out credit checks for the purposes of these Standard Terms and Conditions of Sale and note that any inquiry by RUBICON will be logged by such licensed credit reference agencies.
20.3. RUBICON may disclose information about Purchaser or the conduct of Purchaser’s account (including Purchaser’s payment record) to any licensed credit agencies or any other publisher or supplier organization that requests credit information.
20.4. Purchaser understands that RUBICON may transmit the data it holds to any company or other person that is a subsidiary of RUBICON or in which RUBICON has a direct or controlling interest and Purchaser agrees to such processing.
- Construction
21.1. The section headings used herein are for convenience of reference only and do not form a part of these Standard Terms and Conditions of Sale, and no construction or inference shall be derived therefrom. If any provision of these Standard Terms and Conditions of Sale or the parties’ other written agreements is void or unenforceable, the remainder of these Standard Terms and Conditions of Sale or the parties’ other written agreements shall remain in full force and shall not be terminated.
- Assignment
22.1. Purchaser may not assign or transfer or subcontract to any third party its rights or obligations under these Standard Terms and Conditions of Sale without the prior written consent of RUBICON.
22.2. RUBICON may perform any of its obligations or exercise any of its rights under these Standard Terms and Conditions of Sale by itself or through any company or other person which is a subsidiary of RUBICON or in that RUBICON has directly or indirectly a controlling interest.
- Severability
23.1. If any provision of these Standard Terms and Conditions of Sale is or at any time becomes illegal, invalid, or unenforceable in any respect, the legality, validity, and enforceability of the remaining provisions of these Terms shall not in any way be affected.
- Notices
24.1. Any notice or other communication required or permitted to be given under these Standard Terms and Conditions of Sale shall be properly given by either RUBICON or Purchaser if it is sent in legible form by facsimile transmission, first class recorded delivery or registered post, or by personal delivery to RUBICON at 2040 Speers Road, Oakville, Ontario L6L 2X8 or Purchaser at Purchaser’s last known address or if it is sent by email to the last known email address of RUBICON or Purchaser, and such email is acknowledged by the recipient.
24.2. Any notice served shall be deemed to have been received:
24.2.1. in the case of email, at the time the an email is acknowledged by the recipient;
24.2.2. in the case of a facsimile transmission, one hour after the time of dispatch, evidenced by the relevant completed transmission report;
24.2.3. in the case of any notice sent by post, 96 hours from midnight on the date of posting, evidenced by the relevant proof of posting;
24.2.4. in the case of personal delivery, one hour after the time of delivery to the addressee’s address, evidenced by signature for and on behalf of the addressee; except where the day of receipt of such a notice is not a day on which the recipient is normally open for business or is a day on which the recipient is normally open for business but occurs after 6.00 p.m. (local time) on that day, in which case notice shall be deemed to be received at 9.00 a.m. (local time) on the next day on which the recipient is normally open for business.
- Third-Party Rights
25.1. A person who is not a party to these conditions has no rights to enforce any of its provisions.
- Law
26.1. These Standard Terms and Conditions of Sale and any other terms agreed upon by RUBICON and Purchaser shall be governed and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. Ontario courts shall have exclusive jurisdiction to deal with any dispute that has arisen or may arise out of or in conjunction with the sale of Goods by RUBICON to Purchaser. Purchaser represents and warrants that in the performance of its obligations herein, it shall comply with all applicable federal, provincial, and local laws, ordinances, rules, and regulations.
- Arbitration
27.1 Any dispute between RUBICON and Purchaser relating to these Standard Terms and Conditions of Sale or the parties’ other written agreements, their interpretation, or the breach, termination, or validity thereof, the relationships that result from these Standard Terms and Conditions of Sale, or the parties’ other written agreements, or any related purchase, shall first be submitted to mediation. The parties shall work in good faith to agree upon a mediator. If no such agreement is possible, each party shall choose its own independent representative. Each party’s independent representative shall choose a mediator to preside over any mediation required by this paragraph. Any mediation initiated under this paragraph shall take place in Toronto, Ontario. If, despite the parties’ good faith efforts, the dispute is not resolved at mediation, any remaining claim(s) shall be brought to arbitration. Any question regarding whether a claim is subject to arbitration shall be determined by the arbitrator(s). The parties agree to split evenly the costs of any arbitration initiated under this paragraph, with the exception of the filing fee, which shall be the sole responsibility of the party initiating the arbitration, subject to any subsequent allocation by the arbitrator(s). Any arbitration initiated pursuant to this paragraph shall take place in Toronto, Ontario. Any action brought in court to confirm any arbitrator’s award shall be brought in Toronto, Ontario. PURCHASER SHALL NOT BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER RESELLERS OR PARTNERS OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION. The individual (non-class) nature of this dispute provision goes to the essence of the parties’ arbitration agreement, and if found unenforceable, the entire arbitration provision shall not be enforced. This paragraph shall not prevent either party from seeking emergency injunctive relief in a judicial form, although the merits of the underlying dispute shall be resolved in accordance with this paragraph. Any such action for emergency injunctive relief must be brought in Toronto, Ontario, and the parties consent to the jurisdiction of the courts of Ontario for any purpose and waive any argument that Toronto, Ontario, presents an inconvenient forum for any litigation, mediation, or arbitration between the parties.
- Relationship/Customers
28.1 Although RUBICON and Purchaser may share common sales and marketing goals, the parties are each independent businesses, and the relationship between RUBICON and Purchaser shall be that of seller and buyer and not a joint venture, partnership, principal-agent, broker, sales representative, or franchise relationship. Purchaser does not have authority to make any promise, commitment, or agreement on behalf of RUBICON, and Purchaser shall not represent to anyone that it has such authority. PURCHASER SHALL BE SOLELY RESPONSIBLE FOR ANY AND ALL REPRESENTATIONS AND OMISSIONS IT MAKES OR FAILS TO MAKE TO ITS CUSTOMERS OR TO THE PUBLIC.
- Modification of these Terms
29.1 RUBICON reserves the right to modify these Standard Terms and Conditions of Sale at any time. Any changes to these Standard Terms and Conditions of Sale are effective as of the time they are posted on the Site. These Standard Terms and Conditions of Sale were last updated in September 2015. In the event of any material changes to these Standard Terms and Conditions of Sale that materially impact your use of our services, we will notify you using the most effective communication methods such as emails, notifications in the platform, or as outlined in any agreement between the parties