Terms of Service
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These Terms and Conditions of Sale, which include and incorporate your Order Summary, and our Privacy Policy, as the same may be updated from time to time) (collectively, the “Agreement”), constitutes the entire agreement for online purchases through our website portal, www.forrestmourning.ca (the “Website”), of products identified in the Order Summary (collectively, the “Products”) from Forrest Mourning, (“Forrest Mourning”, “we”, “us”, or “our”) and apply to all purchases from Forrest Mourning by purchaser (“Purchaser”, “you” or “your”). No other terms, or attempted exclusions or modifications, by way of purchase order, acceptance, confirmation, communication, course of performance, or otherwise (collectively referred to as a “Reply”) shall be effective between the parties in the absence of the express written consent of Forrest Mourning. Forrest Mourning hereby sells, and Purchaser hereby purchases, the Products, from Forrest Mourning at the prices set out in the Order Summary. Full payment must be received by us before our acceptance of an order. We accept approved credit cards for all purchases. You represent and warrant that: (i) the credit card information you supply to us is true, correct and complete; (ii) you are duly authorized to use such credit card for the purchase; (iii) charges incurred by you will be honored by your credit card company; and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on our Website at the time of your order. Unless otherwise agreed at the time of purchase: (a) all payments for orders shall be due upon placing an order; and (b) the purchase price is exclusive of all shipping and handling charges, sales, use, excise, Federal, or Provincial VAT/HST, import or export duties, or other taxes or fees required by any governmental authority (collectively, “Taxes”), all of which shall be paid by Purchaser, unless stated otherwise in the Order Summary. Forrest Mourning’s fulfillment of its obligations pursuant to the Order Summary is subject to Forrest Mourning’s acceptance of the Order Summary, and payment of all charges. If you are a consumer Purchaser, the terms and conditions of this Agreement are subject to your rights under the Sale of Goods Act (Ontario), any deemed condition or warranty under the Consumer Protection Act, 2002 (Ontario), the Consumer Protection Act, 2023 (Ontario) (following the coming into force of that Act), the Sale of Goods Act (Ontario), and any other applicable consumer protection legislation, and any term inconsistent with your statutory rights under any such legislation will not apply to you to the extent of that inconsistency. Certain provisions of this Agreement apply only to non-consumer Purchasers of Products, including, without limitation, businesses, individuals, or organizations purchasing or using Products in their respective capacities as commercial or professional providers, operators or managers, of death care consultation services, funeral or memorial service providers, funeral homes, religious institutions, or cemetaries (in any case, a “Non-Consumer Purchaser”). 1. Shipping and Delivery Estimated delivery times are provided for convenience and are not guaranteed. Unless specifically stated otherwise in the order confirmation email, or as may otherwise be provided by applicable consumer protection legislation, risk of loss shall pass to Purchaser upon delivery of the Products to the transportation carrier by Forrest Mourning (i.e., FOB Forrest Mourning). 2. Product Description and Use Our Products are biodegradable burial shrouds intended for use in connection with regulated burial services. The Products are not medical-grade and are not intended for use involving biohazards or regulated medical waste. Purchasers must independently ensure suitability for their intended purpose and compliance with all applicable legal, cultural, and institutional requirements. Purchaser is cautioned to follow all instructions for use provided by Forrest Mourning, and advised that use of the Product is at your discretion. The Product is intended solely for burial use and is not suitable for other purposes, including transport or storage of human remains outside of burial contexts. Before purchasing or using this Product, you must satisfy yourself that:
We cannot guarantee that the Product will be suitable for every cemetery, religious tradition, or regulatory framework. It is your responsibility to confirm acceptability before use. You must ensure the Product meets the needs of your intended use and setting. We make no guarantee that the Product will be acceptable for a specific burial site, community, or practice. You must verify acceptability with the relevant authorities or organizations before purchase and use. 3. Legal and Regulatory Compliance – Purchaser Responsibility You agree that it is your responsibility to ensure that the Product’s purchase, possession, transport, and use comply with all applicable: Federal, state, provincial, and municipal laws, including, without limitation:
and Cemetery rules and by-laws, including, without limitation:
and Religious or cultural requirements, including, without limitation:
4. Returns and Refunds Forrest Mourning will, at its election, in its sole discretion, either repair or replace any defective Product or issue a refund of the purchase price paid to Forrest Mourning for the same (the “Limited Warranty”), if the Product is found by us to be defective in material or workmanship (or both) following return of the unused Product in accordance with the following terms and conditions. To claim under this warranty, the Purchaser must promptly notify Forrest Mourning in writing within ten (10) days of discovery of a defect, by email, or as Forrest Mourning may otherwise advise through our Website from time to time. All such notices must include the date when the defect was discovered, a description of the defect, and evidence of the date of purchase. No other entity or person has any authority to make any warranties or representations on behalf of Forrest Mourning for the Product. This Limited Warranty does not affect any additional statutory rights that may apply. Where the Purchaser is a consumer, this Limited Warranty only applies to the Purchaser in respect of their own personal use in connection with any burial arrangements by or on behalf of the Purchaser, and shall not be assignable, nor apply to any other entity or person (and any attempted assignment shall be of no power or effect). Where the Purchaser is Non-Consumer Purchaser, other than the Limited Warranty set forth herein, Forrest Mourning MAKES NO OTHER WARRANTIES OF ANY KIND, AND EXPRESSLY DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COURSE OF DEALING, AND USAGE OF TRADE AND: IN NO EVENT SHALL FORREST MOURNING BE LIABLE TO THE PURCHASER (WHETHER IN CONTRACT, TORT OR OTHERWISE) FOR ANY DAMAGE TO PERSONS OR PROPERTY, DEATH OR INJURY (WHETHER PHYSICAL OR MENTAL) OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, CONTINGENT, LIQUIDATED, PUNITIVE, OR EXEMPLARY DAMAGES, LOSS OR CLAIM, INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS OR PROFIT, WATER DAMAGE OR MOLD INTRUSION, ARISING FROM, OR IN CONNECTION WITH, THE PRODUCTS, OR THE USE OR MISUSE OF THE PRODUCTS. OUR SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY YOU FOR THE PRODUCTS YOU HAVE ORDERED THROUGH OUR WEBSITE. 5. Indemnification The Purchaser shall indemnify, defend, and hold harmless Forrest Mourning and its officers, directors, employees, shareholders, agents, successors, and assigns for any and all third-party claims for damages, expenses, fines, penalties, and liabilities, including, but not limited to, lawyers’ fees and costs, arising or resulting from any failure to comply with Forrest Mourning’s instructions or guidelines regarding, or otherwise relating to the use of the Products by Purchaser or any other person or entity, the use or misuse of the Products by the Purchaser or any other person or entity, or the alteration, removal, or other modification of warning information provided by Forrest Mourning in connection with the Products, or any other act or omission on the part of the Purchaser that is not in accordance with these Terms or applicable laws. Forrest Mourning reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Purchaser, in which event Purchaser will cooperate with Forrest Mourning in asserting any available defenses. 6. Goods not for Resale or Export If you are a Consumer Purchaser, you represent and warrant that you are buying Products from the Website for your own personal use only, and not for resale or export. If you are a Non-Consumer Purchaser, you represent, warrant, and agree that: (a) you operate at arms’ length from Forrest Mourning; (b) you are not authorized to, and you shall not, provide any warranty on behalf of Forrest Mourning which exceeds the warranties set out in this Agreement; (c) you may not act as an agent for, and have no authority to represent or bind Forrest Mourning in any legal matter; (d) no right to use or license others to use our trademarks, alone or in combination with other words, letters, numbers, logos or symbols, as part of your business name, trademark, domain name, website or internet address, or that of any subsidiary or affiliate, you shall not attempt to suggest that the Products have been made or supplied by anyone other than Forrest Mourning, nor appropriate or adopt any of our trademarks or trade names as your own, nor act in any other way that might result in public deception or confusion as to the fact that Forrest Mourning is the source of the Products and that Forrest Mourning and Purchaser are separate entities. The preceding shall not prevent authorized Purchasers to market the Products, including use of Forrest Mourning marketing information and logo for such purpose but only where, and as, authorized by Forrest Mourning; and (e) all purchases are intended for final delivery to locations within the country to which Product is shipped. 7. Governing Law and Jurisdiction This Agreement shall be construed in accordance with the laws of the Province of Ontario (other than Ontario principles of conflicts of law) and the laws of Canada applicable in the Province of Ontario and shall be treated in all respects as an Ontario contract. Except as otherwise expressly provided in this Agreement, all disputes arising out of, in connection with, or in relation to, this Agreement shall be submitted to the jurisdiction of the courts of the province of Ontario which shall have exclusive jurisdiction over any such dispute. Each of the parties irrevocably agrees to the exclusive personal and subject matter jurisdiction of the courts of the Province of Ontario. 8. Arbitration If you are a Non-Consumer Purchaser, you represent, warrant, and agree that any claim, dispute or controversy (whether in contract, tort or otherwise, whether pre-existing, present or future, and including statutory, common law, intentional tort, injunctive and equitable claims) between you and us arising from or relating in any way to your purchase of products through the website, will be resolved exclusively and finally by binding arbitration as set forth below: In the event of any dispute, claim, question or disagreement arising from or relating to this Agreement, or the relationship that results from this Agreement (a “Dispute”), the parties hereto shall use their best efforts to settle the Dispute. To this effect, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. Either party may provide written notice of any Dispute to the other party at all of the addresses set forth for the other party in section 9 of this Agreement. If the parties do not reach such solution within a period of thirty (30) days following the delivery of a notice of Dispute, then the Dispute shall be resolved by binding arbitration in Ontario, Canada, in accordance with the Arbitration Act, 1991 (Ontario) (as the same may be amended or replaced from time to time), subject to the limitations of this section. Either party (the “Initiating Party”) may initiate an arbitration by written notice (the “Initiating Notice”) to the other party (the “Responding Party”) which notice shall set out at least two and up to five names of individuals who are independent of all of the parties, and are either lawyers duly qualified to practice in the Province of Ontario or have had significant relevant commercial arbitration experience during the preceding five years. Within fourteen (14) days after the Initiating Notice is given, the Responding Party shall by written notice to the Responding Party, designate one of the Persons whose name was set out in the Initiating Notice as an arbitrator. If the Responding Party fails to appoint an arbitrator and deliver notice thereof to the Initiating Party within such time period, then the arbitration shall proceed before an arbitrator appointed by the Initiating Party, from the list set out in the Initiating Notice, who shall act as sole arbitrator. The arbitrator shall determine all matters of procedure for the arbitration and may set out a timetable or schedule of times within which steps must be taken and shall have the jurisdiction to determine any question relevant to the Dispute or the arbitration including, without limitation, any question of fact or law, any question as to the arbitrator’s own jurisdiction and shall have the authority to make any interim or final order which the arbitrator considers to be appropriate in the circumstances. The arbitrator’s award shall be final and binding on the parties and shall not be subject to any appeal or review procedure whatsoever and the parties consent to the award of the arbitrator being entered in any court having jurisdiction for the purposes of enforcement. 9. General Provisions This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties. There are no representations, warranties or other agreements, whether oral or written, between the parties in connection with the subject matter hereof except as specifically set out herein. This Agreement may not be assigned, transferred, or conveyed, in whole or in part, by the Purchaser. Any assignment in violation hereof shall be of no power or effect. This Agreement shall ensure to the benefit of, and be binding upon, the parties, their respective heirs, estate representatives, and permitted assigns. |