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1. General
The agreement between Seller and Buyer (the “Contract of Sale”) with respect to the products described therein (the “Products”) shall consist of the terms contained herein together with any additions or revisions of such terms mutually agreed in writing by Seller and Buyer. Seller shall not be bound by any additional or different terms, whether printed or otherwise, in Buyer’s purchase order or in any other communication from Buyer to Seller, which attempt to impose any conditions at variance with Seller’s terms which are included
herein, unless specifically agreed to by Seller in writing. Buyer, by accepting the Products, shall be deemed to have consented to the terms and conditions set forth on this or any other document hereafter sent by Seller, notwithstanding any terms contained in any prior or subsequent communications or acts of Buyer and whether or not Seller shall specifically or expressly object to any such terms or acts. Seller’s failure to object to provisions contained in any of Buyer’s forms shall not be deemed in acceptance of any of Buyer’s provisions terms or waiver of the provisions of Seller’s terms and conditions which shall constitute the entire, final and exclusive statement of the Contract of Sale between Seller and Buyer. No binding contract shall be credited by the acceptance on the part of Buyer of a quotation or offer made by Seller until notice of Seller’s acceptance of the order, in writing, shall have been given by Seller. Prior courses of dealing and verbal agreements not reduced to writing signed by Seller, to the extent that they modify, add to or detract from the Contracts of Sale, shall not be binding upon Seller. The Contract of Sale may not be modified or rescinded except by a writing signed by Seller and Buyer.
2. Price
All prices are subject to change, without notice, and the price payable by the Buyer shall be the price in existence at the date of shipping. Unless otherwise stated, all prices are exclusive of all applicable federal, provincial, or local taxes, freight, packaging, crating, handling and other similar charges, payment of which shall be the sole responsibility of Buyer. If Seller pays any such tax or charge. Buyer will promptly reimburse the same. Buyer shall be liable for any such taxes or charges unless Buyer furnishes Seller with exemption certificates acceptable to taxing authorities.
3. Payment
Unless otherwise set forth on the face hereof, terms for payment are net 30 days from the invoice date, Seller reserves the right to modify payment terms prior to shipment, require payment in advances, or delay or cancel shipment by reason of Buyer’s credit worthiness. In the event of Buyer’ default in payment for Products when due, Seller shall be entitled to collect an interest charge of the lesser of 1.5% of the unpaid purchase price per month or the maximum amount allowed by applicable law. Seller shall also be entitled, in addition to all other remedies available at law or in equity, to suspend all further deliveries of Products, to recall Products in transit, retake the same and repossess all Products which may be stored with Seller for Buyer’s account until such payments have been made or cancel any balance of the order and shall be entitled to recover reasonable attorney’s fees and/or other expenses in collecting the purchase price or otherwise enforcing or successfully defending itself with respect to the Contract of Sale.
4. Shortages and Overages
Seller will endeavour to deliver the full quality of Products ordered, but Seller reserves the right to make delivery of Products in installments; deliver such part of the Products as currently available; and in either case, tender a separate invoice for any Products delivered. In the case of specially manufactured products or standard products packaged in non-standard containers, Seller reserves the right to supply on excess created up to 10% of the original quantity ordered with a minimum quantity of one (1) gallon.
5. Delivery
a. Any date or period of time quoted by Seller for dispatch or delivery is given and intended as an estimate only and is not to be of the essence. Seller shall not be liable in any way with respect to a later dispatch or delivery, however caused, and such delay shall not be a breach of the Contract of Sale.
b. the Products are available to the carrier, to Buyer or to Buyer’s agent at Seller’s facilities, whichever occurs earlier (“Delivery”). Buyer is responsible for storage charges in the event that Products are held by Seller at the request of Buyer pending shipping instructions.
c. In the absence of instructions as to shipping, Seller may select a carrier. The carrier shall be an agent for Buyer and Seller has no liability for such shipment.
6. Title of Products and Risk of Loss
Title to the Products and risk of loss will be deemed to pass to Buyer upon Delivery. All Products shall be deemed accepted by the Buyer, unless, within twenty (20) days from Delivery, Buyer shall notify Seller that such Products are damaged, defective or do not otherwise conform to the terms of the Contract of Sale. Buyer expressly waives any rights. Buyer may have to revoke acceptance after such twenty (20) day period.
7. Security Interest
Buyer grants to the Seller a purchase-money security interest in all Products sold by Seller to Buyer, and to all Products now or hereafter acquired by Buyer and to any proceeds thereof, until the purchase price and any other charges due to the Seller shall have been paid in full. Buyer agrees to execute financing statements or other documents as Seller from time to time may request in order to protect Seller’s security interest. Seller shall have all rights and remedies of a secured party under the Personal Property Security Act (Ontario) of any other applicable provincial legislation, which rights and remedies shall be cumulative and non-exclusive.
8. Buyer’s Material
a. Buyer warrants that any designs, drawings, instructions or other material furnished or given by Buyer to Seller, shall not be such as to cause Seller, in executing Buyer’s order, to infringe on any patent, registered design, trademark, copyright or other intellectual property right and Buyer agrees to hold Seller harmless from and will indemnify and keep Seller indemnified from and against all actions, proceedings, claims, demands, judgments, costs or expenses resulting from any actual or claimed infringement of any such rights.
b. Seller shall be under no liability to Buyer for any loss which Buyer or the owner of the designs, drawings, instructions or other material furnished or given by Buyer to Seller may suffer by reason on the loss, destruction or damage, however caused, while in the possession or under the control of the Seller, and Seller shall not be required to repair or replace such material or copies thereof.
9. Force Majeure
Seller shall not be liable for any failure or delay in the performance of orders or contracts, or in the delivery or shipment of Products or for any damages suffered by Buyer by reason of such failure or delay, when such failure or delay is, directly or indirectly caused by, or in any manner arises from, fires, floods, accidents, riots, acts of God, war, governmental interference or embargoes, strikes, labour difficulties, shortage of labour, fuel, power, materials, supplies or manufacturers or any other cause or causes (whether or not similar in
nature to any of those hereinbefore specified) beyond its control Seller reserves the right to cancel, without liability, any order, the shipment of which is or may be delayed by reason of any cause or causes beyond its control as aforesaid Seller reserves the right in its sole discretion, to allocate among customers or potential customers or defer or delay the shipment of any product which is in short supply. |
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10. Limitation of Liability
Notwithstanding anything herein, in the Contract of Sale or in any other written material of Seller to the contrary, Seller shall have no liability or obligation to Buyer or any other person for any claim, loss, damage, or expense of any kind caused in whole or in part, directly or indirectly, by the inadequacy of any Products for any purpose, deficiency or defect in any Product whether or not covered by any warranty, the use or performance of any Products, any interruption or loss of services, delay in shipment, or any special, direct, indirect, incidental, or consequential damages, however caused, including, without limitation, personal injury, death, or loss of business or profit, or other damage, whether or not Buyer shall have informed Seller of the possibility or likelihood of such or any other damages. Buyer agrees to indemnify and hold Seller harmless from any and all liability, loss, costs or damages described in the proceeding sentence, including, without limitation, reasonable attorneys’ fees, and from claims by any party (including without limitation, claims by Buyer’s customers, insurers, employees, contractors, subcontractors or agents, or their respective employees and workers´ compensation insurers) for personal injuries or death or damage to property (tangible or intangible) arising out of the existence or use of the Products or any defect in the Products, whether such liability, loss, cost damage or claim is occasioned in whole or in part by any actual or alleged act or omission of Seller, the representatives, employees, subcontractors, vendors or suppliers, or by any defect in the Products whether or not it is contended that Seller contributed thereto in whole or in part, or was responsible therefore by reason of non-delegable duty.
11. Limited Warranty
To the extent permitted by the terms thereof, Seller passes on and assigns to Buyer the warranties made to Seller by its suppliers and manufacturers for Products delivered not produced by Seller and the warranty delivered to Seller with respect thereto by such suppliers or manufacturers shall be the sole warranty with respect thereto. Such warranty is expressly in lieu of any warranty, express or implied, of or by Seller. Seller warrants its Products at the time of shipment to Buyer will be commercially free from defects in material and workmanship and will be materially in accord with specifications promulgated by Seller in writing. This warranty shall be ineffective and shall not apply to Products that have been subjected to misuse or abuse, neglect, accident, damage or which are allowed to age beyond their specified shelf life. Buyer will inspect the Products upon receipt and will promptly notify Seller in writing of any defects in the Products. Seller’s sole obligation under these warranties will be limited, at Seller’s election, to either refund Buyer’s purchase price (without interest) or replacement F.O.B. first point of shipment, for Products which Seller reasonably determines do not conform with these warranties and Buyer’s sole and exclusive remedy for breach of any such warranties will be enforcement of such obligation of Seller. All such claims shall be submitted by Buyer in writing to Seller within twenty (20) days from the date of receipt by Buyer, otherwise such claims shall be irrevocably waived. No agent, employee or representative of Seller has any authority to bind Seller to any representations, affirmation or warranty concerning the Products, and any such representation, affirmation or warranty concerning the Products shall not be deemed to have become a basis of the Contract of Sale and shall be unenforceable. THERE ARE NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR AFFIRMATIONS OF ANY KIND BY SELLER OR ANY PERSON WHO IS AN AGENT, EMPLOYEE OR OTHER REPRESENTATIVE OR AFFILIATE OF SELLER, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONDITION OR PERFORMANCE OF ANY PRODUCTS, THEIR MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WITH RESPECT TO ANY OTHER MATTERS RELATING TO ANY PRODUCTS, SELLER ASSUMES NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR MANUFACTURERS© OR SUPPLIERS’ PRODUCTS. THE FOREGOING WARRANTIES AND CONDITIONS ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR PURPOSE AND OF ANY OTHER TYPE, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. Buyer acknowledges that except as set forth in this paragraph, neither Seller nor any person has made, and Buyer has not relied upon any express, implied or other warranty or representation (including, without limitation, advertising materials, brochures or other descriptive literature) concerning any Products.
12. Cancellation by Buyer
In the event the Buyer cancels its order, Buyer shall be liable for cancellation charges based upon costs determined by generally accepted accounting principles plus a reasonable profit on the entire quantity ordered. Cost shall include any amount Seller must pay to its suppliers or manufacturers due to any termination by Seller of a purchase order for Products intended for Buyer.
13. Buyer’s Bankruptcy
Upon the commencement of any proceedings in bankruptcy or for reorganization of buyer, or for the readjustment of any of its debts under the Bankruptcy and Insolvency Act (Canada), the Winding-up and Restructuring Act (Canada), the Companies’ Creditors Arrangement Act (Canada), or any successor legislation thereto or under any other law, or the appointment of a receiver or trustee for Buyer or for any substantial part of its assets, or the institution of any proceedings for the dissolution, or the full or partial liquidation, of Buyer, Seller may, at its sole option, suspend all further deliveries until default has been cured, or cancel any contract then existing with respect to any further Products yet to be delivered, without any liability whatsoever.
14. Assignment
The Contract of Sale shall be binding upon and enure to the benefit of the Buyer and Seller and their respective successors and permitted assigns. All rights and obligations accruing hereunder to the Buyer are personal and shall not be assigned by the Buyer, either in whole or in part, except with the prior written consent of the Seller which consent may be unreasonably withheld.
15. Governing Law: Choice of Forum
The Contract of Sale and any question concerning its validity, construction or performance shall be governed by the laws and the courts of the Province of Ontario. Each of the Buyer and Seller consents to the exclusive jurisdiction of the courts of Ontario with respect to all disputes arising under the Contract of Sale. Whenever a term defined in the Sale of Goods Act (Ontario) and any equivalent law in any other jurisdiction, is used in these Standard Terms and Conditions of Sale, the definition contained in the Sale of Goods Act (Ontario) and any equivalent law in any other jurisdiction, shall control. Any action for breach of the Contract of Sale or any covenant or warranty must be commenced by Buyer within one (1) year after the cause of action accrues.
16. Severability
Any provisions of the Contract of Sale or these Standard Terms and Conditions of Sale which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions or affecting the validity of enforceability of such provisions in any other jurisdiction.
17. Choice of Language
The parties hereto confirm their express wish that this agreement, as well as all other documents related to it, including notices, be drawn up in the English language only and declare themselves satisfied therewith; les parties aux présentes confirment leur volonté expresse de voir la présente convention de même que tous les documents, y compris tous avis, s’y rattachant, rédigés en langue anglaise seulement et s’en déclarent satisfaits.
18. Entire Agreement
The Contract of Sale constitutes the whole agreement between the Buyer and Seller. Any amendment or variation of this agreement of the Contract of Sale shall only be made in writing and shall only be valid when signed by the authorized representatives of the Buyer and Seller.
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