TERMS AND CONDITIONS
Last Revised JULY 1, 2019
Set forth below are (1) Commercial Terms & Conditions of Sale for the Ordering of AB Canada products; (2) Decoration Terms & Conditions that apply to decoration services provided by AB Canada and (3) AB Canada’s Policies for the Sale of Branded & Private Brand Products.
I. GENERAL TERMS & CONDITIONS OF SALE
Orders for AB Canada products (the “Goods”) are subject to the following terms and conditions of sale (the “Commercial T&C”). The Commercial T&C shall govern the sale of Goods from AB Canada to you and/or the company you are authorized to represent (“you”). AB Canada’s performance is expressly made conditional upon your agreement to the Commercial T&C. Any provisions or conditions of any purchase order or other document, which are inconsistent with or in addition the Commercial T&C are hereby rejected and shall be inapplicable and not binding upon AB Canada.
AB Canada shall accept your orders in writing, by phone (with follow-up written confirmation) or through electronic means for web-based orders. You may not cancel an order accepted by AB Canada (i.e., they are non-refundable), except upon the consent of AB Canada in each instance. You may pay for your first order by Cash On Delivery, pre-payment, credit card or with a company cheque upon prior credit approval by AB Canada. AB Canada shall deliver Goods F.O.B. AB Canada’s shipping facility; risk of loss for Goods passes to you once Goods are loaded onto the courier at AB Canada’s facility. AB Canada shall make commercially reasonable efforts to meet any shipment date stated on the face of any accepted order. However, you understand and agree that shipment of Goods is subject to availability, and AB CANADA EXPRESSLY DISCLAIMS LIABILITY FOR ANY FAILURE TO MEET SUCH DELIVERY DATES. AB Canada shall have the right to deliver Goods at one time or in portions from time to time, and to invoice for those portions delivered. Payment will not be considered final until all freight charges and taxes billed to you have been paid. You may order non-grommeted samples from AB Canada and receive a full refund if you return them within thirty (30) days and pay for all related shipping charges. Grommeted samples may not be returned. AB Canada offers free freight on orders for trade and retail brands over CAD $300 shipped via ground with AB Canada’s preferred carrier within Canada (excludes closeout items). This policy includes split shipments. AB Canada may periodically offer other free freight promotions and free freight is subject to change in AB Canada’s sole discretion. You may also pick up your orders at AB Canada.
You shall purchase Goods in accordance with AB Canada’s price list in effect at the time of the order (less other discounts, if any). Prices are exclusive of all sales or use taxes, QST, GST or HST (including without limitation harmonized sales tax or goods and services tax), tariffs, customs (except fees associated with original importation which AB Canada pays), duties and other governmental charges. You shall pay or reimburse AB Canada for any and all such charges. Late payment of any amount will be grounds for AB Canada to discontinue performance under these terms and conditions of sale. Any amounts not paid by the due date will be subject to a finance charge at a rate equal to the lesser of 1.5% per month (being 18% per annum) or the maximum rate allowed by law. However, payment of such finance charge will not excuse or cure a breach or default for late payment. Returned cheque(s) will be subject to a CAD $25.00 per cheque charge. All freight is F.O.B. point of origin. You remain responsible for all shipping and handling charges including, without limitation, failure by the consignee to pay shipping charges, failure by any third party to pay shipping charges, or an incorrect or invalid shipping account number. AB Canada accepts Visa and MasterCard up to 30 Days from the invoice date, Direct Debit online (ACH), EFT transfers and cheques are accepted, for more information please contact the Credit Department at 1-800-306-8993 ext. # 2.
AB Canada does not accept third party credit cards. Any Customer that knowingly adds third party credit card information to their account may have their account suspended and will be responsible for full recovery of any loss to AB Canada resulting from the use of the third party credit card.
All prices are subject to change without notice, other than orders already accepted by AB Canada. AB Canada assumes no responsibility and shall incur no liability whatsoever if price change notices are not received. In the event of new federal or provincial taxes or legislation affecting the cost of products or items, AB Canada reserves the right to increase prices as it deems appropriate or necessary. Goods are subject to change or withdrawal, or may be temporarily or permanently out of stock. We assume no liability for delays or failure to deliver due to our inability to obtain supplies. AB Canada has no minimum order amount; Wholesale prices given to our cash & open credit accounts reflect a discount from our Standard prices. Credit Card sales receive Standard Prices.
4. Discounted Pricing and Product Description.
Orders placed for one to 11 pieces in a specific style, color and size group receive piece pricing. Case pricing is available for orders of a particular pack of a specific style, color and size group, with quantity determined by mill. Many product descriptions include the weight of the fabric indicated in ounces. All weights included in product descriptions are averages based on the color offering for that specific item. Weights are provided to AB Canada by the manufacturer and we have no responsibility for them.
5. Back orders.
Back orders are only allowed on active styles that are out of stock in the AB Canada distribution facility at the time of the order. No backorders will be accepted for discontinued or closeout Goods. Back orders will be filled in the order they are received. You will not be charged until your back order ships. Each back order incurs separate shipping charges. Customers will receive fulfillment notification from AB Canada as goods are available. AB Canada assumes no liability for delays or failure to deliver due to our inability to obtain the back ordered product.
6. Returns and Cancelled Orders.
It is your responsibility to check for discrepancies or defects in an order before any alterations or embellishments are made. Claims for shortages, damage or defects in Goods must be reported within 72 hours of receipt. Returns must be authorized by AB Canada in advance via phone or web and within 14 days of receipt of Goods. Goods must be returned to AB Canada within 30 days of receipt of Goods. Claims for returns for defective Goods must be made in accordance with the warranties below. Altered or embellished garments are not returnable. Authorized returns must be accompanied by a return authorization form or number from AB Canada. Returns without original corresponding invoice number(s) will be credited at the lowest published price. Cancelled orders, returns of unwanted Goods, returns due to customer error, refused COD, unclaimed COD, or unclaimed pick up orders are subject to a 15% restocking fee based on the quantity and nature of the returned products plus applicable shipping charges and there is a $5 minimum restocking fee. Valid returns made via alphabroder.ca’s online returns will not incur a restocking fee unless AB Canada believes in its sole discretion that you are abusing the return policy. Goods that are not AB Canada’s will be returned to you at your expense or disposed of by AB Canada. Discontinued or close-out items are not returnable. Freight for all returns not made via alphabroder.ca must be prepaid by you. Please contact AB Canada Customer Service for a return authorization and shipping address. Returns on drop shipments coming direct from Mill suppliers are not allowed. No returns on grommeted samples. Defective Goods must have tape placed over the flaw before returning. It is Buyer’s responsibility to verify the accuracy of style, color, size and quantity on orders shipped to parties other than the Buyer prior to decorating.
7. Export Shipments.
Many Goods that have been imported into Canada cannot be exported to other countries. It is your responsibility to check with the freight forwarder to confirm foreign documentation requirements and verify that items to be exported will be released by customs at the final destination.
8. Warranties, Disclaimer, Limitations on Liability.
AB Canada warrants only that the Goods shall be free from material defects on the delivery date, provided, you store and handle the delivered Goods in such a manner that meets or exceeds the storage and handling procedures utilized by AB Canada.
You must provide AB Canada with written notice of any warranty claims no later than 72 hours after receipt of the applicable order of Goods. Failure to provide written notice within such 72 hour period shall void AB Canada’s warranties in their entirety. As AB Canada’s sole responsibility and liability, and YOUR ONLY AND EXCLUSIVE REMEDY for any breach or breaches of such warranties, AB Canada shall, upon written notice from you, either (at AB Canada’s option) replace the defective portion of the Goods, or accept return thereof and refund the price paid by you for the defective portion. Any misuse, improper handling, storage, use, modification or alteration of the Goods by any third party shall void the forgoing warranty. You shall remain entirely responsible for any shipments by you or your company for purposes of returning defective products or packages to AB Canada, and all risk of loss or damage during shipment shall be borne by you. AB Canada will pay (or reimburse you) for reasonable shipping and handling charges limited to valid warranty claims.
You agree and acknowledge that any benefits derived from use or resale of the Goods will depend on factors which vary from business to business and which are not within AB Canada’s control.
YOU ARE RESPONSIBLE FOR THE SELECTION OF THE GOODS TO MEET YOUR, YOUR COMPANY’S OR ITS CUSTOMER’S NEEDS, AND AB CANADA MAKES NO WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM THE USE OR SALE OF THE GOODS IN YOUR BUSINESS. THE WARRANTIES SET FORTH IN THIS SECTION ARE THE ONLY WARRANTIES MADE BY AB CANADA. AB CANADA EXPRESSLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, ARISING BY LAW OR OTHERWISE AND ANY IMPLIED INDEMNITIES.
IN NO EVENT WILL AB CANADA BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RESULTING FROM THE USE OR SALE OF GOODS BY YOU, OR ANY OTHER PARTY, OR FROM THE MANUFACTURE, SALE OR USE OF ANYTHING MADE BASED ON THE GOODS, EVEN IF AB CANADA IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT FOR INJURIES TO CONSUMERS DUE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AB CANADA.
You agree that, regardless of the form of action, whether in contract or tort, including negligence, AB Canada’s liability for damages claimed by you with respect to the Goods shall not exceed an amount equal to the fees received by AB Canada from you for the applicable Goods. Regardless of the form of action, whether in contract or tort, including negligence, AB Canada’s liability for damages claimed by third parties with respect to the Goods, as between AB Canada and you shall not exceed an amount equal to the fees paid to AB Canada. No action, regardless of form, arising under this Agreement (other than an action for non-payment of any purchase prices or other amounts owed by you to AB Canada), may be brought by either party more than one (1) year after the date of the alleged breach. AB Canada shall not be liable for any failure to perform under this Agreement where such failure is due to any cause beyond AB Canada’s control.
You hereby release and shall forthwith defend, fully indemnify and hold AB Canada and its owners and agents completely harmless from and against any actual or threatened claims, losses, liabilities (including without limitation any punitive damages and fines), costs and expenses (including without limitation reasonable costs of litigation and attorney’s fees) related to third party actions (a) in which it is determined that AB Canada is not at fault; and/or (b) arising from or relating to any acts or omissions by you, your company or your customers.
Our relationship is one of independent contractors. No agency, employment, partnership or joint venture shall be created by or founded upon this Agreement. You shall not make or assign, or represent to any party, by implication or otherwise, that it may make or assign, any warranty or representation by or for AB Canada, nor shall you attempt, or represent that you are entitled, to make any commitment, waiver or settlement on behalf of AB Canada or to pledge the credit of AB Canada. Your rights under the Commercial T&C are personal to you and the company you represent, and may not be assigned or transferred in whole or in part by you, nor may any benefit under the Commercial T&C inure to any trustee in bankruptcy, receiver, or successor, whether by operation of law or otherwise, without the prior written consent of AB Canada, and any attempted assignment or transfer without such consent shall constitute a breach hereunder and shall be void.
10. Valid Accounts.
To open an account with AB Canada, a customer must supply a provincial sales tax number and a federal harmonized sales tax or goods and services tax number. Customers must conduct business within the Promotional Products Industry or be a reseller of decorated apparel (including but not limited to apparel decorators, promotional product distributors, and retailers). Members of Industry Organizations such as Advertising Specialty Institute (ASI) or the Promotional Products Association International (PPAI) should supply their membership numbers when applying for an account.
11. Applicable Law and Dispute Resolution.
The Commercial T&C shall be governed and construed in accordance with the laws of the Province of Ontario, Canada applicable to contracts entered into and fully performed in Ontario and the federal laws of Canada applicable therein without regard to its conflicts of law principles that would cause the application of any other jurisdictions laws. With respect to any disputes or claims not subject to arbitration, you agree not to commence or prosecute any action in connection therewith other than in the courts in the Province of Ontario, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the courts in the Province of Ontario.
You unconditionally consent and agree that any dispute, controversy or claim arising out of or relating to the Commercial T&C against the officers, directors and employees of AB Canada and its parent, subsidiaries, affiliates (all such individuals and entities collectively referred to herein as the AB Canada Entities), including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules. The tribunal will consist of a sole arbitrator. The seat of the arbitration will be Toronto, Canada. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction. There shall be no authority for any claims to be arbitrated on a class or representative basis, arbitration can decide only your and/or the applicable AB Canada Entity’s individual claims; the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; THE ARBITRATOR SHALL NOT HAVE THE POWER TO AWARD CONSEQUENTIAL OR PUNITIVE DAMAGES AGAINST YOU OR ANY AB CANADA ENTITY. In the event that the administrative fees and deposits that must be paid to initiate arbitration against any AB Canada Entity exceed $125 CAD, and you are unable (or not required under the rules of JAMS) to pay any fees and deposits that exceed this amount, AB Canada agrees to pay them and/or forward them on your behalf, subject to ultimate allocation by the arbitrator. In addition, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, AB Canada will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the rules of JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. For more information on JAMS and/or the rules of JAMS, visit their website at www.jamsadr.com.
II. DECORATION GENERAL TERMS & CONDITIONS OF SALE
Orders for the decoration of Goods are also subject to the additional terms and conditions of sale set forth below (the “Decoration T&C”) in addition to the Commercial T&C above.
These Decoration T&C of sale shall govern the decoration of Goods sold by AB Canada to you and/or the company you are authorized to represent (you). AB Canada’s performance of decoration services is expressly made conditional upon your agreement to these Decoration T&C of sale. Any provisions or conditions of any purchase order or other document, which are inconsistent with or in addition to the Decoration T&C are hereby rejected and shall be inapplicable and not binding upon AB Canada.
1. Approval of Artwork.
Written or electronic approval by you is required for all new art logos.
2. Approval of Proofs. You are responsible to ensure that proofs are correct in all respects. You should check spelling, colors, logo size, logo placement, layout and design as well as order pricing, add-ons and quantities before approving proof. AB Canada disclaims any responsibility for any error in spelling, colors, logo size, logo placement, layout and design as well as order pricing, add-ons and quantities once you have approved a proof for production.
3. Credit Approval. Shipment of decorated orders is subject to credit approval.
4. Production Times. Standard production times discussed below are subject to change based on order volumes. Failure to confirm proofs within 24 hours will affect the ship date. For Embroidery: up to 200 locations- allow 3-5 business days after all customer approvals; over 200 locations allow 5-7 business days after all customer approvals; for over 1000 locations, special handling , packaging or drop shipments, call AB Canada for a quote on delivery time. For Heat Seal: up to 1199 locations – allow 7-10 business days after all customer approvals; for over 1200 locations, special handling, packaging or drop shipments, call AB Canada for a quote on earliest delivery date.
5. Cancellations of / Changes To Decoration Orders. A Decoration order may not be cancelled once the order has been approved by you. Changes to Goods being decorated or to the artwork on an order may not be made once you have approved the order. Changes to shipping information may be made by you at any point in time before the order has completed production as determined by AB Canada in its sole discretion.
6. Infringement Claims. AB Canada disclaims any liability for any claims or damages for infringement of any intellectual property rights belonging to a third party arising out of AB Canada’s use of art work or logo supplied by you to AB Canada. You agree to forthwith defend, fully indemnify and hold completely harmless AB Canada and its agents from any and all claims or damages, direct or indirect including consequential damages, as a result of the actual or alleged infringement of any copyright, trademark or patent owned by a third party arising from AB Canada’s use of art work or logo supplied by you to AB Canada to be used for decoration services provided by AB Canada or its agents to you. AB Canada reserves the right to refuse to use any intellectual property if it reasonably suspects that you do not have the requisite permission to use same.
III. BRANDED & PRIVATE BRAND SALES POLICIES
AB Canada requires that all authorized customers strictly adhere to its sales policies for
• all Alternative, American Apparel, Champion, Columbia, Dickies, Headsweats, Marmot Mountain and Spyder apparel and accessories (hereinafter referred to as “Branded”), and
• all Ash City, Authentic Pigment, Core365, Devon & Jones, Extreme, Harriton, Il Migliore, North End, North End Sport Blue, North End Sport Red, Team365, and Ultra Club apparel and accessories (hereinafter referred to as “Private Brands”).
AB Canada reserves the right to add additional brands to the definition of “Branded” and “Private Brands” in its sole discretion.
The current policies for Branded and Private Brands products is as follows:
1. AB Canada will sell Branded and Private Brands products only to authorized customers who, in the sole discretion and judgment of AB Canada:
(a) do not advertise, promote, distribute, sell or market in any way that disparages, misrepresents or injures Branded or Private Brands products;
(b) do not distribute or sell products employing any illegal, deceptive, undesirable, or improper advertising, marketing or selling practice, including predatory or “loss leader” pricing, bait and switch, or negative selling practices; and
(c) comply with all applicable laws, rules and regulations.
2. You may sell Alternative, American Apparel, Champion, Columbia, Headsweats, Marmot, Puma and Spyder products only with embellishment. Generic, obscure and/or temporary decoration, in order to resell these products, is prohibited.
3. Online sales of Alternative, American Apparel, Champion, Columbia, Dickies, Headsweats, Marmot, Puma and Spyder products may be made only from your own website or another eligible, authorized customer website. Sales on or through eBay, Amazon, Craigslist, kijiji or any other direct-to-consumer, third party site are strictly prohibited.
4. Alternative products purchased from AB Canada must be sold only with embellishment. “The decoration of any Alternative garment with the proprietary marks, names and logos of any professional or collegiate sports team or collegiate institution is expressly prohibited Sale of Alternative on the internet or elsewhere without embellishment is strictly forbidden (excludes those items designated as closeout/clearance). Failing to comply with these policies will result in loss of privileges for selling the Alternative brand.
5. American Apparel products purchased from AB Canada must be sold only with embellishment. Sale of American Apparel on the internet or elsewhere without embellishment is strictly forbidden (excludes those items designated as closeout/clearance). Failing to comply with these policies will result in loss of privileges for selling the American Apparel brand.
6. Champion products purchased from alphabroder must be sold only with embellishment. Sale of Champion products on the internet or elsewhere without embellishment is strictly forbidden (excludes those items designated as closeout/clearance).The decoration of any Champion garment with the proprietary marks, names and logos of any professional or collegiate sports team or collegiate institution is expressly prohibited. Failing to comply with these policies will result in loss of privileges for selling the Champion brand.
7. Columbia products purchased from alphabroder must be sold only with embellishment. Sale of Columbia products on the internet or elsewhere without embellishment is strictly forbidden. The decoration of any Columbia garment with the proprietary marks, names and logos of any professional or collegiate sports team or collegiate institution is expressly prohibited. Failing to comply with these policies will result in loss of privileges for selling the Champion brand.
8. Headsweats products purchased from alphabroder must be sold only with embellishment. Sale of Headsweats products on the internet or elsewhere without embellishment is strictly forbidden. Failing to comply with these policies will result in loss of privileges for selling the Headsweats brand.
9. Marmot Mountain products purchased from AB Canada must be sold only with embellishment. Sale of Marmot Mountain on the internet or elsewhere without embellishment is strictly forbidden (excludes those items designated as closeout/clearance). Failing to comply with these policies will result in loss of privileges for selling the Marmot Mountain brand.
10. Puma Golf and Puma Sport products purchased from AB Canada must be sold only with embellishment. Sale of Puma Golf and Puma Sport on the internet or elsewhere without embellishment is strictly forbidden (excludes those items designated as closeout/clearance). Failing to comply with these policies will result in loss of privileges for selling the Puma brand.
11. Spyder products purchased from alphabroder must be sold only with embellishment. Sale of Spyder products on the internet or elsewhere without embellishment is strictly forbidden. Failing to comply with these policies will result in loss of privileges for selling the Spyder brand.
12. If AB Canada believes, in its sole and absolute discretion, that you have failed to comply with the policy or policies stated herein, it may provide you with written notice of the same. AB Canada may also in its sole discretion, with or without written notice to you, stop selling Branded and/or Private Brands products to you or terminate the relationship.
13. AB Canada requires all customers to allow AB Canada access to their company website in the same manner allowed to the general public. Blocking AB Canada from your company site may result in AB Canada discontinuing sales to you.
14. These Branded & Private Brands Sales Policies are not a contract, nor an offer to form a contract. AB Canada is not asking for and will not accept any agreement affirming your compliance with these policies. These policies simply describe the circumstances under which AB Canada may, in its sole discretion, choose to continue selling Branded and Private Brands products to you.
AB Canada representatives are strictly prohibited from discussing these sales policies or any other pricing practice with you, and from seeking or accepting any assurance of compliance with these policies. All questions regarding these policies shall be directed, in writing, to AB Canada, Attn Sales Department, 35 Orlando Avenue, Richmond Hill, Ontario, Canada L4B 0B4.
15. AB Canada does not seek any comment or criticism from you about the pricing or advertising practices of any other authorized customer. AB Canada will not, under any circumstances, discuss the business dealings of any authorized customer with any other authorized customer. AB Canada reserves the right to change, amend, or discontinue these Branded and Private Brand sales policies at any time, and no third party has any right to rely on the continued existence of these policies, or any act or omission by AB Canada to enforce these sales policies. AB Canada may elect in its sole discretion not to enforce advertising price policies for high volume orders.