IN CONSIDERATION of the mutual covenants and conditions contained in the Agreement, Gecko Grow and the Purchaser agree as follows:
- DEFINITIONS
1.1 Definitions. The following capitalized terms, wherever used in the Agreement, any Order and any documents prepared pursuant thereto, mean:
(a) “Agreement” means the agreement entered into between Gecko Grow and the Purchaser, which shall incorporate these terms, upon the earlier of the Purchaser logging into a wholesale account on the Website or placing an order with Gecko Grow as a wholesaler through other means.
(b) “Completion” means Product has been delivered to the Purchaser in accordance with Article 5 – Delivery, or provision of services has been completed in accordance with an Order.
(c) “Confidential Information” means all information of a confidential or proprietary nature (including information in writing or transmitted or acquired orally, electronically, visually or by other means) which the Purchaser or Gecko Grow, directly or indirectly, acquires from the other party, including any information concerning or relating to any Order, and including such party’s business, affairs, financial position, costs, pricing, assets, operations, processes, activities, prospects or trade secrets, together with all analyses, evaluations, compilations, notes, studies or other documents prepared by a party, but shall not include:
(i) information which is or becomes available to the public, other than as a result of disclosure by the receiving party;
(ii) information which the receiving party can prove was, at the time of disclosure, already in the possession of the receiving party on a non-confidential and lawful basis;
(iii) information that the receiving party can demonstrate was independently developed by it or for it and that was not obtained, in whole or in part, from the other party; or
(iv) information that is rightfully received by a receiving party from a third party, without the receiving party’s knowledge, after due inquiry, of a breach of a confidentiality agreement or other obligation of secrecy by such third party.
(d) “Gecko Grow” means 10970115 Canada Ltd.
(e) “Order” means a contract that is created between Gecko Grow and the Purchaser when Product or services are requested by the Purchaser and the request is accepted by Gecko Grow in accordance with Article 4 Orders.
(f) “Product” means any physical or digital goods provided by Gecko Grow to the Purchaser.
(g) “Purchaser” means the entity acquiring Product or services from Gecko Grow.
(h) “Termination” means termination of the Agreement in accordance with Article 12 – Termination.
(i) “Website” means the website located at https://geckogrow.ca including all sub-pages. - AMENDMENTS; DISCONTINUANCE.
2.1 Gecko Grow may, in its sole discretion and for any reason, modify, supplement or amend these terms and conditions without any notice or liability to the Purchaser or any other person, by posting revised terms and conditions on or through the Website. The Purchaser’s continued use of the Website signifies its acceptance of such revised terms and conditions, as such the Purchaser must check back frequently to read the most recent version. Gecko Grow reserves the right to suspend or discontinue the operation of the Website at any time. - INTERPRETATION
3.1 Interpretation. The interpretation of the Agreement, each Order and any documents prepared thereto shall be governed by the following rules:
(a) headings contained in the Agreement are for convenience and reference only and are not to be considered in the interpretation of, or affect the meaning of, any of its provisions;
(b) all dollar figures shall mean Canadian Dollars, unless otherwise specifically referenced;
(c) words importing the singular include the plural, and vice versa;
(d) words importing the masculine gender include the feminine and neuter, and vice versa;
(e) words importing persons include firms or corporations, and vice versa, as the context or reference to the parties requires;
(f) “Article” or “Paragraph” refers to the specified article or paragraph of the Agreement, unless expressly noted otherwise;
(g) where a reference is made to a “day”, “week”, “month” or “year” the reference is to the calendar period;
(h) the word “include” or “including”, when following a general term or statement, is not to be construed as limiting the term or statement to the specific items or matters stated or to similar items or matters, but rather as referring to all items or matters that could reasonably fall within the broadest possible scope of the term or statement; and
(i) in the calculation of time, the first day shall be excluded and the last day shall be included.
3.2 Document Precedence. In the event of any ambiguity, conflict or inconsistency among or between the various documents comprising the Agreement or an Order, such documents shall be construed, interpreted and applied so as to give effect to their express terms, as amended, restated, revised, supplemented or replaced by agreement of both parties in the following order of precedence such that the first mentioned document below shall prevail, notwithstanding any term or aspect of a later mentioned document:
(a) this document titled Gecko Grow Wholesale Terms and Conditions;
(b) an Order;
(c) a valid price list issued by Gecko Grow to the Purchaser;
(d) any other written correspondence between Gecko Grow and the Purchaser; and
(e) the Website.
3.3 Severability. If any term, covenant or condition of the Agreement, or the application to any person or circumstance, to any extent, is invalid or unenforceable, the remainder of the Agreement or the application of such provision to persons or circumstances other than those to which it is held invalid or unenforceable shall not be affected and each remaining term, covenant or condition of the Agreement shall be separately valid and shall be enforceable to the fullest extent permitted by law.
3.4 Adverse Rule of Construction Not to Apply. The words in the Agreement shall bear their natural or defined meaning. The parties have each had full opportunity of obtaining legal advice and accordingly any rule of construction to the effect that any ambiguity is to be resolved against the drafting party shall not be applicable in the interpretation of the Agreement. - ORDERS
4.1 Issuance of Orders. The parties agree that Orders may be placed by the Purchaser to Gecko Grow;
(a) verbally;
(b) via email, text message, or other form of electronic communication;
(c) by acceptance of a quote provided by Gecko Grow to the Purchaser;
(d) online through Gecko Grow’s website; or
(e) by issuance of a purchase order to Gecko Grow.
4.2 Order Acceptance and Applicable Terms. Upon acceptance by Gecko Grow, each Order shall become binding upon the parties and, unless otherwise mutually agreed by the parties in writing, the terms of this Agreement shall apply. - DELIVERY
5.1 Delivery Terms and Cost. Unless otherwise specified in an Order, delivery terms shall be as specified in each Order. In the event that an Order does not specify delivery terms, the applicable terms shall be FCA – Gecko Grow, Calgary, Alberta in accordance with Incoterms 2020. Unless otherwise specified in an Order, wholesale prices do not include the cost of delivery in accordance with this Paragraph and any delivery costs shall be paid by the Purchaser on the Purchaser’s account, or added to the Purchaser’s invoice. - INVOICING AND PAYMENT
6.1 Invoices. Upon acceptance of and Order, Gecko Grow shall issue an invoice to the Purchaser and the Purchaser shall pay Gecko Grow in accordance with this Agreement.
6.2 Sales Tax. Except where the Purchaser provides Gecko Grow with valid proof of exemption, applicable sales taxes shall be added to each invoice. Applicable sales taxes shall be calculated based on the delivery location for the Order.
6.3 Payment Terms. Unless otherwise agreed to in writing between Gecko Grow and the Purchaser, the payment terms applicable to Orders shall be 100% Advance due prior to shipment or release to the Purchaser.
6.4 Payment Channels. Payment may be made to Gecko Grow via;
(a) Interac e-transfer to payment@geckogrow.ca;
(b) direct bank transfer (transfer account details will be provided upon request); or
(c) credit card with a transaction fee of 2.5% added to the invoice total.
6.5 Progress Payments for Services. Where the duration of services provided under an Order exceeds two (2) weeks, Gecko Grow may invoice the Purchaser bi-weekly for the portion of services performed during the preceding two (2) week period. - PURCHASER OBLIGATIONS AND RESTRICTIONS
7.1 Average Customer Rating. If the Purchaser collects customer ratings or reviews, the Purchaser shall maintain a minimum of four (4) out of five (5) star customer rating, or equivalent, for the Products, and a minimum of ninety five percent (95%) of customer reviews shall reflect positively on the Products or customer experience. Customer reviews of the Purchaser received directly by Gecko Grow will also be considered to determine compliance with this obligation.
7.2 Product Condition. The Purchaser shall not sell Product that has been damaged, contaminated, or is not otherwise in new condition.
7.3 Minimum Inventory Levels. The Purchaser shall endeavour to maintain a minimum inventory level of two (2) units for each Product it carries.
7.4 Minimum Order Value. Each Order shall have a minimum value before applicable taxes of five hundred dollars ($500.00).
7.5 Minimum Annual Purchase Value. During the Term, the Purchaser shall maintain a minimum annual purchase value of one thousand dollars ($1000.00).
7.6 Authorized Sales Channels.
(a) The Purchaser is only authorized to sell the Products to customers;
(i) in person at its physical retail location;
(ii) in person at a market, trade show, or other similar venue;
(iii) over the telephone or other virtual direct communication platform;
(iv) through its website; or
(v) through social media platforms using Purchaser branded accounts.
(b) Without prior written approval from Gecko Grow, the Purchaser is not authorized to sell Products on Amazon.ca, Amazon.com, Walmart.ca, Walmart.com, Ebay.ca, Ebay.com, Etsy.com or other similar sales platforms.
7.7 Product Advertising and Publicity. The Purchaser is authorized to advertise sale of the Product using physical and digital media, provided that the Product is advertised in a professional and positive manner.
7.8 Product Use by Purchaser. The Purchaser is authorized to use the Products for its own internal uses.
7.9 Product Repackaging for Resale. The Purchaser is not authorized to re-package or re-brand Products for resale.
7.10 Sale of Product to Purchasers. The Purchaser is not authorized to sell Products to customers where the Purchaser knows, or should have known, that the customer intends to re-sell the Products in any form.
7.11 Disclosure of Product Trial Results. The Purchaser is not authorized to disclose the results of any Product testing or trials to a third party without the prior written consent of Gecko Grow. - PRODUCT RETURN
8.1 Return of Product. With the exception of custom or unique Products, the Purchaser may return any Products in new and saleable condition to Gecko Grow within ninety (90) days of Order Completion. The cost of shipping Products back to Gecko Grow shall be borne by the Purchaser. Gecko Grow will refund the Purchaser in full for the returned Product less a twenty percent (20%) restocking fee up to a maximum return value of two thousand dollars ($2,000) in any ninety (90) day period. - REPRESENTATIONS AND WARRANTIES
9.1 Product Warranty. Gecko Grow warrants that at the time of Order Completion, Product shall be in accordance with any associated guaranteed minimum analysis, free of manufacturing defects, shall be in accordance with any specifications stated in an Order or on product labeling, and Product shall be in new and saleable condition. The purchaser accepts the preceding warranties as the sole and exclusive warranty and waives any other warranties whether express or implied including warranties of merchantability or fitness for a particular purpose.
9.2 Warranty Claim Period. Any warranty claims must be received by Gecko Grow in writing within one year of Completion.
9.3 Facilitation of Third Party Warranty Claims. The warranties provided herein are transferable only to the direct customers of the Purchaser and the Purchaser shall assist Gecko Grow in the facilitation of any warranty claims raised by its customers.
9.4 Authorization to Distribute. Gecko Grow represents that it is an authorized distributor of the Products and that it is authorized to extend this authorization to the Purchaser within the terms of this Agreement. In the event that Gecko Grow loses this authorization during the Term, it warrants that it will promptly notify the Purchaser of the same. - LIMITATION OF LIABILITY
10.1 Liability. Gecko Grow shall only be liable to the Purchaser for direct losses that are wholly the result of Gecko Grow’s negligence or breach of the provisions set out in Article 9 – Representations and Warranties. The purchaser’s sole and exclusive remedy for such losses, shall, at the sole option of Gecko Grow, be:
(a) refund of the wholesale price paid by the Purchaser for the individual product(s) which caused the loss; or
(b) replacement of the individual product(s) which caused the loss.
For clarity, Gecko Grow shall not be liable for any consequential, punitive, or other such damages.
10.2 Third Party Claims. The Purchaser shall indemnify, and hold harmless Gecko Grow and its personnel from all claims whatsoever by any third party which may be brought or made against Gecko Grow or its personnel, or which Gecko Grow or its personnel may suffer, sustain, pay or incur as a result of and to the extent of the acts, faults, errors, omissions or negligence of the Purchaser.
10.3 Defence and Counsel. The Purchaser shall assume the defence of any claims brought against Gecko Grow or its Personnel by any third party in respect of which the Purchaser is obligated to indemnify in accordance with Paragraph 10.2 – Third Party Claims, provided that the Purchaser shall not be entitled to settle any claim in a manner which could prejudice Gecko Grow or its personnel without written consent from Gecko Grow. In addition, Gecko Grow or its personnel may, at its own cost, retain its own counsel to represent it. - CONFIDENTIALITY
11.1 Confidential Information. Any and all Confidential Information received by a party to the Agreement (including any and all Confidential Information received by a party to the Agreement prior to the execution of the Agreement) shall be received in the strictest confidence and shall not be: (i) disclosed to any third party or (ii) used in any manner whatsoever directly or indirectly for any purpose other than for the purposes of executing its requirements under the Agreement or an Order, except in accordance with this Article 11 – Confidentiality and with the prior consent of the party who provided the Confidential Information, which consent may be arbitrarily withheld.
11.2 Exempt Disclosure. Despite any other provision of this Article 11 – Confidentiality, a party is entitled to disclose any Confidential Information to the extent necessary:
(a) to its personnel associated with the Agreement or an Order who have a need to know the Confidential Information and who have been informed of the confidential nature of such Confidential Information;
(b) if prior approval of disclosure is obtained from the party who provided the Confidential Information, in its sole discretion, which approval may be arbitrarily withheld;
(c) to acknowledge to third parties that the Agreement exists between the parties; or
(d) to comply with the law, provided that, to the extent permitted by the law, the disclosing party is promptly notified by the receiving party of the obligation the receiving party has to disclose the Confidential Information.
11.3 Ownership of Confidential Information. Each party shall retain ownership of all of its Confidential Information that it provides to the other party in connection with the Agreement or any Order. - TERMINATION
12.1 Termination for Convenience. Either party may terminate this Agreement with sixty (60) days written notice to the other party.
12.2 Termination for Cause. If either party is in material breach of this Agreement, the other party shall notify the breaching party and if the breach is not cured after a reasonable cure period, not to exceed two (2) weeks, the other party may terminate this Agreement for cause with immediate effectiveness.
12.3 Impact of Termination on Open Orders. Termination of this Agreement for convenience shall not have an impact on any active Orders and each parties’ obligations under open Orders shall survive termination unless those Orders are terminated in accordance with Paragraph 12.4 – Termination of an Order. In the event of Termination for Cause, all open Orders shall be terminated as well in accordance with Paragraph 12.4 – Termination of an Order unless otherwise agreed to between the parties.
12.4 Termination of an Order. The Purchaser may terminate an Order prior to Completion and shall compensate Gecko Grow for any reasonable costs incurred in relation to the Order prior to the date termination. - GENERAL MATTERS
13.1 Advertising and Publicity. Either party may advertise or publicize to third parties that they have entered into this Agreement.
13.2 Assignment. Neither party may assign the Agreement without the prior written consent of the other party, which consent may be arbitrarily withheld.
13.3 Non-Exclusivity. Both Gecko Grow and the Purchaser are free to deal with any other third party including competitors of the other party.
13.4 Independence. Gecko Grow and the Purchaser are independent entities and the parties expressly deny that it is their intention to create any joint venture, employment, partnership or other relationship. Unless otherwise specified in writing, neither party is the agent of the other in any capacity whatsoever under any Order or the Agreement and has no authority to act as an agent of the other party.
13.5 Survival. The following Articles or Paragraphs shall survive termination of the Agreement:
(a) Article 9 – Representations and Warranties
(b) Article 10 – Limitation of Liability
(c) Article 11 – Confidentiality
