The Terms of Sale and Delivery below apply to all contracts, quotations, orders, order confirmations, sales, and deliveries from Protekta to the extent the Terms have not been deviated from by other written agreement.
Formation of contract
A contract is formed when Protekta fulfils orders placed by the Buyer, when a written contract is concluded, or when Protekta sends confirmation of orders placed by the Buyer. Every delivery from Protekta shall be contingent on the delivered goods being used by the Buyer or the Buyer’s end user. The Buyer shall not be entitled to assign to a third party any of its rights and obligations under the concluded agreement.
All prices are FOB loading place and are based on Incoterms 2010 unless otherwise agreed. All prices are in USD or CAD and include packing. All prices are exclusive of VAT and taxes. The price is listed per unit or 100 kg, unless otherwise agreed in writing. Prices are to be determined on the basis of the current prices in accordance with our current pricelists at the time of contract formation or on the basis of an offer.
The minimum amount of customer-specific goods per product is one pallet unless otherwise agreed upon. The pallet sizes (i.e., the number of bags per pallet) depend on the size of the bag (no. kg/bag) and can be advised in each individual case by contacting Protekta. Supplement products can be delivered in smaller quantities than whole packing sizes.
Time of delivery
Protekta endeavors to have any ordered in-stock goods ready for delivery within five business days after receiving the order if no specific documentation requirements apply. The delivery date stated in the order confirmation is indicative and must be finally confirmed by Protekta prior to any pick-up. Any delivery deadlines stated above, or in marketing materials or at the Protekta website, shall only be indicative for Protekta’s customers.
Late delivery—notwithstanding whether the time of delivery has been agreed upon or not—shall not entitle the Buyer to cancel a delivery before the Buyer has stipulated a reasonable deadline for delivery in the form of a written notice to Protekta, stating that the Buyer intends to cancel the delivery if delivery is not made within the stipulated deadline. In the event that delivery is not made by the deadline, the Buyer shall be entitled to cancel the delivery in question by notifying Protekta of this in writing.
The Buyer shall be prevented from making any other claims, including claims for damages, in the event of delay.
*This does not apply to drop/custom shipments coming from outside Canada or the USA, where ocean freight delays can be out of our control.
A delay of one delivery does not entitle the Buyer to cancel/rescind any previous or subsequent deliveries.
If a delivery delay is due to circumstances at the Buyer, the delivery time shall be extended to the extent deemed reasonable under the circumstances.
Fixed quantity in a delivery period
When entering into an agreement about delivery over a specified period of time, the agreed volume is a fixed quantity for successive deliveries equally distributed across the agreed delivery period. The agreed volume is the maximum quantity and any greater volumes are purchased at the applicable current price. Any subsequent changes to the Buyer’s relationship with the end user and corresponding changes to the end user’s production situation shall not exempt the Buyer from receiving the agreed quantity. At the expiry of the delivery period or at a previous cessation of purchase, Protekta shall be entitled to choose between either considering any residual volume as cancelled or letting the residual volume be invoiced in advance at the agreed price or effecting a net settlement of the residual volume. Net settlement shall be based on the difference between the agreed price and the current price at the expiry of the delivery period. Volumes invoiced in advance shall be subject to storage rent at the applicable rates, which can be requested from Protekta.
Place of delivery
Unless otherwise agreed in writing, delivery of goods takes place FOB Lucknow, FOB Brampton, or delivered.
Returns of delivered products shall not be accepted unless as per the return policy or otherwise specifically agreed in writing.
Composition of products
All products will be delivered with the agreed nutritional content. However, Protekta reserves the right to make changes to the composition of products where deemed necessary (changes from suppliers) or expedient by Protekta. All changes will be made in accordance with professional guidelines.
Incoming inspection, defects,
Upon collection, the Buyer’s carrier shall check the contents of the delivery note and ensure that the produced and the picked quantity, respectively, have been loaded. Upon arrival to the Buyer’s, the Buyer shall check the quality of the delivered quantity for conformity with the agreement. In case of non-conformity, the Buyer shall be obliged to immediately contact Protekta. If the Buyer does not raise objections within ten (10) days of receiving the goods, complaints about defective delivery cannot be made later on. Complaints, defects or the like must be specified on the delivery note and signed by the driver before leaving the loading place. At its own discretion, Protekta may decide to remedy any defects by means of replacement delivery and supplementary delivery within a reasonable period of time or by granting the Buyer a proportionate reduction of the purchase price.
If Protekta does not remedy the defect as described above, the Buyer may cancel the part of the delivery which is defective. Defects in one delivery will consequently not entitle the Buyer to cancel/rescind any previous or subsequent deliveries.
Other than the above provisions, the Buyer shall not be entitled to any other compensation, including that the Buyer shall not be entitled to claim compensation in damages, unless otherwise stipulated in mandatory rules of law.
Evidence of faults and defects in products produced by Protekta and resulting product damage to property, including injury to animals, shall only be accepted in the form of copy samples taken and stored by Protekta (via our suppliers) and consequently not in the form of samples taken independently by the Buyer or end user. The above copy samples are taken by Protekta in connection with the production. Only the copy samples may constitute the basis for assessing values by chemical analysis and evaluation of physical quality.
New duties, taxes, etc.
In the event of changes and/or introduction of import duties, Canadian or US duties, or other public duties in relation to the time of entering into the agreement and where such duty is levied upon Protekta, Protekta reserves the right to re-invoice the duty to the Buyer. The same shall apply to changes and/or introduction of taxes, contribution charges, fees, etc.
Payment/calculation of interest
The applicable terms of payment are specified on Protekta’s invoice or are set out in a separate agreement. If the Buyer does not effect payment when due or if there is a change to the prerequisites for any agreed credit, Protekta shall be entitled to withhold any further deliveries to the Buyer, regardless of whether there is any interrelation between the deliveries. In case of late payment, a reminder fee may be imposed, together with default interest. Interest shall be calculated in accordance with the interest rates stipulated by Protekta at any time. Payments cover advance interest accrued and imposed reminder fees. Information about reminder fees and interest rates can be obtained by contacting Protekta. Amounts payable which are more than three (3) months overdue shall be subject to additional interest to be added to the interest calculation stated above. The additional interest amounts to the applicable interest rate stipulated by Protekta at any time. Information about this can be obtained by contacting Protekta. Protekta shall be entitled at any time to require satisfactory security for the timely payment of the purchase price, freight, and other costs and to perform a new credit rating of the Buyer, if applicable. With respect to future deliveries, Protekta shall be entitled to request payment upon delivery if rendered relevant by the criteria determined by Protekta for this credit rating. Payment of any receivables will usually be effected digitally to the Buyer’s bank account.
Protekta shall be entitled to offset claims due to Protekta and its group entities from the Buyer against any claims that Buyer may have against Protekta or a company in the same group as Protekta. The Buyer shall not be entitled to offset any claims against Protekta which have not been acknowledged and accepted in writing by Protekta and shall not be entitled to withhold any of the purchase price due to the existence of counterclaims of any kind whatsoever.
Liability for damages/limitation of liability
The provisions below concerning Protekta’s liability for damages apply subject to the general provisions of these Terms of Sale and Delivery. Protekta shall only be liable to pay damages for damage, injury, or losses in consequence of product damage caused by defects in a delivered product or in consequence of a significant delay or defective delivery if such damage, injury, or loss is the result of actionable errors or negligence on the part of Protekta which has inflicted a documented and directly causally related loss on the Buyer. Protekta’s liability to pay damages shall be contingent on the Buyer’s careful observance of instructions issued by Protekta and/or the manufacturer. Protekta shall not be liable to pay damages for any damage, injury, or loss arising from advice offered by Protekta. Notwithstanding whether Protekta is held liable in pursuance of the rules on product liability or in consequence of delayed or defective delivery, Protekta cannot in any way be held liable for indirect loss, including operating loss, loss of goodwill, and loss of earnings as well as (other) losses arising from the Buyer’s non-performance of contractual obligations vis-à- vis third parties. Protekta shall not be liable for personal injuries in consequence of a defect in the product (product liability) unless—and in this event only to the extent that—this follows from mandatory rules of law. Where a product delivered by Protekta causes damage to property (including injuries to animals) in consequence of a defect in the product (product liability), Protekta’s liability in damages cannot exceed the amount limits stated below. If Protekta is held liable in consequence of the rules on product liability or in consequence of delayed or defective delivery, Protekta’s liability in damages, including expenses and losses related to recall/withdrawal of a product sold by the Buyer, cannot exceed 1 million CDN per delivery and a total amount of 2 million CDN within a current period of 12 months with respect to Protekta’s total deliveries to the Buyer in the period concerned.
In the event of force majeure or other causes beyond the control of Protekta, including government intervention or intervention by local authorities; public orders, confiscation, blockades, strikes, and/or lockouts; slowdown; export or import bans; natural disasters or poor weather conditions; scarcity of goods; fire; machine breakdown; lack of means of transportation, labor, raw materials, or energy; war, riots, terrorism, or disturbances; as well as delays or failures on the part of Protekta’s suppliers or third parties, Protekta reserves the right to suspend a delivery for the duration of the period in which the circumstances in question restrict Protekta’s possibilities of delivery in full or in part, or to cancel the delivery in full or in part without this enabling claims for damages or other form of compensation to the Buyer.
Unless otherwise agreed, all disputes must be settled in accordance with Canadian law at the Ontario Court of Justice. However, the parties shall request that the case be referred to the Danish Maritime and Commercial Court in Copenhagen if the circumstances of the case allow it to be processed by the Danish Maritime and Commercial Court.