Issued October 31, 2011
All orders are accepted and all sales are expressly made conditional on Purchaser’s agreement to these terms and conditions, notwithstanding any purchase orders or offers containing different or additional provisions. Purchaser’s acceptance of goods constitutes acceptance of these terms and conditions and also Purchaser’s agreement that they control over any terms, correspondence or forms supplied by Purchaser at any time.
Orders cannot be cancelled by Purchaser without Seller’s written consent and are subject to change or price adjustment based on fluctuations in material price and availability. These Terms and Conditions are a final, complete and exclusive statement of the parties’ agreement. No statements or changes of any kind or any conflicting terms or conditions in any writing by Purchaser to Seller are binding on Seller unless specifically agreed to in writing by Seller. Prior statements, representations, and agreements not incorporated are excluded and superseded hereby. No course of prior dealings between Seller and Purchaser and no usage of trade shall be used to supplement any term in this agreement. Acceptance or acquiescence in a course of performance shall not be relevant to alter the meaning of this agreement. Modifications must be in writing. These Terms and Conditions shall not be modified or rescinded by agreement or conduct or waived unless specifically agreed to in writing by Seller. The amount of any present or future sales, use, excise, or similar taxes, applicable to the ordered goods shall be added to Seller’s price and paid by the Purchaser, unless the Purchaser timely provides Seller with a tax exemption certificate applicable to Seller.
Seller shall not be liable for any penalty or damages, liquidated or otherwise for any shipment delays. Unless otherwise stated by Seller, goods are shipped F.O.B. shipping point only; and all loss, damage and delay in transit are at the risk of the Purchaser. Unless otherwise stated by Seller, when goods have been delivered to a carrier, the risk of loss passes to Purchaser and Seller’s responsibility for delivery ends. Shipment should be examined carefully before being accepted from the carrier. Seller assumes no responsibility for damage after having received “in good order” receipts from a carrier at shipping point. Claims for shortages or non-conforming shipments must be made in writing and sent to Seller immediately upon Purchaser’s receipt of the shipment. Failure to give such notice shall be deemed unqualified acceptance and a waiver by Purchaser of any claim with respect to the Shipment.
3. TITLE TO GOODS
Purchaser acknowledges and agrees that until payment in full of the amount shown on the invoice is received by Seller, title to the goods herein shall remain with Seller, whether or not the goods are in the Seller’s possession and whether or not they have been fabricated or used by the Purchaser. Until such payment has been made, Seller shall have the right to at any time without notice to enter the premises where the goods are situated and take possession of the same, and the Purchaser agrees to defend, indemnify and save Seller harmless from any and all costs, expenses and damages (including legal fees) arising out of any claim asserted against the Seller as a consequence to the Seller’s exercise of such right.
The Purchaser agrees to keep the goods fully insured against loss and damage which insurance shall be placed with insurance companies for the benefit of the Seller and the proceeds of any such insurance shall, at the option of the Seller, be applied to the payment due or becoming due at the time of such payment or applied toward the replacement of the goods and if the goods shall be replaced, then, and in such event the terms, provisions and conditions of this agreement shall apply to such replaced products with the same force and effect as if such replacement products had originally been the subject of this agreement.
That if the Purchaser shall make default in punctually paying any of the payments provided for in this agreement, or if a proceeding in bankruptcy, receivership or insolvency shall be instituted or filed by or against the Purchaser as a debtor, bankrupt, defendant or insolvent or if the Purchaser shall enter into any arrangement or agreement with its creditors, the full amount of the purchase price then remaining unpaid shall, at the option of the Seller be immediately due and payable, anything to the contrary in this agreement notwithstanding, it being expressly agreed that the title in the goods shall vest in the Purchaser only on the payment of the full purchase price and on the compliance by the Purchaser with the terms and conditions of this agreement.
Unless its permission has been first obtained, Seller will not accept goods for return or credit. Risk of loss for returned goods will remain with Purchaser and Purchaser shall reimburse Seller for any cost it incurs in connection with the shipment and return of the goods. Goods fabricated to order are not returnable under any circumstances except for approved warranty claim.
7. NON-PAYMENT AND ENFORCEMENT
Interest at the maximum legal rate not exceeding 18% per year shall be charged on overdue accounts at a rate of 1.5% per month. If an invoice is not paid when due, or it becomes necessary for Seller to enforce these terms and conditions, Purchaser agrees to pay all costs of collection, or enforcement or both, including attorney’s fees, whether incurred in or out of court, or appeal, in arbitration, in a bankruptcy proceeding, or in any insolvency proceedings.
8. PENALTY CLAUSES
Seller assumes no liability arising from penalty or liquidated damage clauses of any kind, written or implied.
9. LIMITED WARRANTY/SOLE REMEDY
Except as otherwise provided in a written warranty issued by Seller, Seller warrants title to the goods sold by it and that these goods conform to the description contained herein and are of merchantable quality, Seller’s entire liability is limited to the purchase price of the goods in respect of which a claim is made and costs of transport. Purchaser assumes all risk of loss and liability resulting from the use or sale of any goods delivered hereunder. If goods sold to purchaser fail to conform to this limited warranty, Purchaser must give Seller written notice of such nonconformance (a) within 30 days of the time when defect was or should have been discovered, but (b) not later than three months from receipt of the goods, or Purchaser waives any rights with respect to the goods. After written notice, and Purchaser’s return of goods proven defective to Seller, Seller will replace the defective goods or, in Seller’s sole discretion, refund the purchase price of such portion of the goods as are rendered unusable as a result of such defect. Seller may modify at any time design of products or materials used therein or discontinue their manufacture without any liability, Purchaser agrees that this remedy is the sole and exclusive remedy of the purchaser with respect to the goods. Seller’s entire liability on any claim arising out of the sale of the goods or its replacement of defective goods, whether in contract, warranty, tort (including negligence and strict liability) or otherwise, shall be limited to the purchase price of the goods that are proven defective and costs of transport. This warranty does not extend to, and is voided by, goods damaged or failed because of, or by use with, materials or supplies or methods not approved by Seller or other applicable installation standard or code; or because of misuse; abuse; accident; damage in transit; improper handling or installation not in accordance with recommended practices or codes; or resulting consequences. Mold, weld or fusion lines are not defects or non-conformities.
10. EXCLUSIONS OF WARRANTY AND LIMITATION OF LIABILITY AND REMEDIES.
Seller makes no warranty other than the above limited sole and exclusive warranty. This limited warranty and remedy is expressly in lieu of any and all other express or implied warranties, and excludes and implied warranty of merchantability or fitness for a particular purpose. The limited warranty constitutes the only warranty made with respect to the goods. All other warranties are excluded. By its purchase of goods, Purchaser has decided that the standard of the goods is fit for Purchaser’s purpose. Purchaser is solely responsible for determining the suitability for use or application of any goods, including components thereof, or whether such goods meet requirements of applicable building codes or safety codes for specific applications.
Purchaser agrees that neither Seller nor its suppliers shall under any circumstances be liable (a) for any other damages, direct, incidental, special, indirect or consequential, whether resulting from Seller’s negligence or otherwise, resulting from or in connection with the goods sold to Purchaser, nor (b) for any claims, actions, suits and proceedings which may be instituted in respect to the foregoing, including claims, actions, suits and proceedings made by subsequent owners and users of the goods, nor for strict liability or other tort, nor (c) for lost revenues or earnings, lost profits, lost opportunities, costs or delays, lost goodwill or reputation, or punitive or exemplary damages. If it is found that this remedy fails of its essential purpose, Seller’s liability shall nonetheless be limited to a refund of the purchase price paid, and transportation costs. The exclusion of consequential damages shall be deemed independent of, and shall survive any failure of the essential purpose of any limited remedy.
11. CONDITIONS OF RESALE/SUBSEQUENT PURCHASERS
These Terms and Conditions shall be binding upon all subsequent owners and users of the goods. Goods are sold subject to the condition that they shall not be resold or otherwise conveyed without similar conditions, including that these conditions be imposed on the subsequent purchaser/ user or transferee.
12. CREDIT INQUIRIES
You authorize us to make inquiries and to receive information about your credit experience from others, to enter this information in your file and to disclose such information concerning you to third parties. You acknowledge that we may, on a regular basis, provide credit experience information regarding your account to others seeking this information.
13. POWER OF ATTORNEY
Purchaser hereby irrevocably authorizes and empowers any attorney of any court of record to appear for and confess judgment and therein against the Purchaser, or any of them, for the amount for which the Purchaser may be or become liable to Seller under these Terms and Conditions as evidenced by an affidavit signed by a representative of the Seller setting forth the amount then due, plus 15% thereof, but no less than $500, as an attorney’s commission, with costs of suit, release of errors, and without right of appeal. If a copy hereof, verified by an affidavit, shall have been filed in said proceeding, it shall not be necessary to file the original as a warrant of attorney. Purchaser waives the right to any stay of execution and the benefit of all exemption laws now or hereafter in effect. No single exercise of the forgoing warrant and power to confess judgment shall be deemed to exhaust the power, whether or not any such exercise shall be held by any court to be invalid, voidable, or void, but the power shall continue undiminished and may be exercised from time to time as often as Seller shall elect, until all sums payable or that may become payable by Purchaser have been paid in full.
14. NO ASSIGNMENT
This agreement is not assignable by Purchaser but shall be binding upon and inure to the benefit of the parties hereto and their respective successors.
15. FORCE MAJEURE
Seller shall not be responsible for any loss or damage of any kind or nature whatsoever, direct or indirect, suffered by Purchaser, subsequent purchasers, ultimate users of goods, or any other person, as a result of any factors beyond its control, including (without limitation) Purchaser’s acts or omissions, labor shortages, strikes, lock-outs, work slowdowns, accidents, fire, floods, earthquakes, severe weather, serious accidents, epidemics, quarantines, wars, breakdowns, delays in manufacture, transportation or delivery of goods or materials purchased by Seller, unavailability, inadequacy or shortages of material or services, acts of God, embargoes, wars, insurrections or riots, terrorism, acts of civil or military authorities, civil commotion, or governmental or regulatory or licensing action or changes, or any other circumstances beyond Seller’s reasonable control.
Invalidity of part of any of these Terms and Conditions shall not invalidate the remainder and the Purchaser and Seller agree to amend these Terms and Conditions to substitute for the provision at issue a valid, legal and enforceable provision as similar as possible to the provision at issue and to otherwise give effect to the provision at issue as much as possible.
17. CHOICE OF LAW AND BINDING ARBITRATION
This agreement and all Terms and Conditions shall be construed and governed by the Provincial laws of Ontario and the Federal laws of Canada. The United Nations Convention on Contracts for the International Sale of Goods does not apply. Except as provided under the NON-PAYMENT / ENFORCEMENT and POWER OF ATTORNEY sections herein, any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise and whether pre-existing, present or future) arising out of or relating to: these terms and conditions; a good or service; oral or written statements, or advertisements or promotions relating to these terms and conditions or to a good or service; or the relationships which result from these terms and conditions (including relationships with third parties who are not signatories to this agreement) (each, a “Claim”), will be referred to and determined by binding arbitration (to the exclusion of the courts). By so agreeing, you waive any right you may have to commence or participate in any class action against us related to any Claim and, where applicable, you hereby agree to opt out of any class proceeding against us otherwise commenced. By so agreeing, you further expressly waive any right to a jury trial regarding disputes related to this agreement or to any Claim. Arbitration shall occur in the City of Toronto by one arbitrator under the rules of the Arbitrations Act; and judgment may be rendered upon the award made by a court of competent jurisdiction.