Terms and Conditions of Sale

  1. APPLICABILITY.   These terms and conditions of sale (“Terms”) apply to the sale and purchase of products and ancillary services (collectively the “Products”) by the Vendor (“Vendor”) and the Purchaser (“Purchaser”), each of which is identified in the accompanying quotation, purchase order, order confirmation or invoice (the “Sales Confirmation”). These Terms and the Sales Confirmation comprise the entire agreement between the parties (collectively, the “Agreement”). The Purchaser accepts these Terms by signing and returning the Vendor’s quotation, by sending a purchase order in response to the quotation, upon receipt of an order confirmation, or by Purchaser’s instructions to the Vendor to ship the Product. No terms, conditions or warranties other than those identified in the quotation and no agreement or understanding, oral or written, in any way purporting to modify the terms and conditions whether contained in Purchaser’s purchase order or shipping release forms, or elsewhere, shall be binding on the Vendor unless hereafter made in writing and signed by Vendor . The Purchaser is hereby notified of the Vendor’s express rejection of any terms inconsistent with this Agreement or to any other terms proposed by the Purchaser in accepting the Vendor’s quotation. Neither the Vendor’s subsequent lack of objection to any terms, nor the delivery of the products or services, shall constitute an agreement by the Vendor to any terms.
  2. CANCELLATION.   Cancellation or modifications of all or part of any order are subject to the Vendor’s prior written consent in each instance. If cancellation or modification is allowed, the Purchaser agrees to pay to the Vendor all expenses incurred and damage sustained by the Vendor on account of the cancellation or modification, plus a reasonable profit.

  3. PRICE.   Prices in any Sales Confirmation from the Vendor are subject to change upon notice sent to the Purchaser at any time before the Sales Confirmation has been accepted by the Vendor. Prices for Products covered by this Agreement may be adjusted by the Vendor, upon notice to the Purchaser at any time prior to order confirmation by the Vendor, to reflect any increase in the Vendor’s cost of raw materials, or otherwise, incurred by the Vendor after issuance of the applicable Sales Confirmation. All stated prices are exclusive of any taxes, fees, duties, and levies, however designated or imposed, including but not limited to value-added and withholding taxes that are levied or based upon the amounts paid under this Agreement (collectively, “Taxes”). Any Taxes related to the Products purchased pursuant to this Agreement are the responsibility of the Purchaser (excluding taxes based on the Vendor’s net income), unless the Purchaser presents an exemption certificate acceptable to the Vendor and the applicable taxing authorities. If possible, the Vendor will bill Taxes as a separate item on the invoice presented to Purchaser. If any exemption certificate presented by the Purchaser is held to be invalid, then the Purchaser will pay the Vendor the amount of the Tax and any penalties and interest related thereto.

  4. PAYMENT.  Unless otherwise set forth in the Sales Confirmation, the Purchaser will pay all invoiced amounts within thirty (30) days following the date of the Vendor’s invoice. Unpaid amounts will accrue interest at a rate equal to the lesser of one and one-half percent (1.5%) per month and the maximum rate permitted by applicable law, from due date until paid, plus the Vendor’s reasonable costs of collection. In addition to all other remedies available to the Vendor (which the Vendor does not waive by the exercise of any rights hereunder), the Vendor may suspend the delivery of any Products if the Purchaser fails to pay any amounts when due and the failure continues for five (5) days following Purchaser’s receipt of notice thereof. The Purchaser may not withhold payment of any amounts due and payable as a set-off of any claim or dispute with the Vendor, regardless of whether relating to Vendor’s breach, bankruptcy, or otherwise.

  5. DELIVERY; SHIPPING
    (a) The Vendor will deliver the Products within a reasonable time after receiving the Purchaser’s purchase order, subject to their availability. The delivery date provided by the Vendor for the Products is only an estimate and is based upon prompt receipt of all necessary information from Purchaser. If the Purchaser causes the Vendor to delay shipment or completion of the Products, the Vendor will be entitled to any and all extra costs and expenses resulting from the delay. The Vendor will not be liable for any delays, loss, or damage in transit, and failure to deliver within the time estimated will not be a material breach of contract on the Vendor’s part.

    (b) Unless otherwise agreed in writing by the parties, the Vendor will deliver the Products at the location specified in the Sales Confirmation (the “Delivery Location”), using the Vendor’s standard methods for packaging and shipping same. The Purchaser will take delivery of the Products the day the Products have been delivered to the Delivery Location. If the Purchaser fails to take delivery of the Products on delivery, the Purchaser will pay the Vendor for the Products and all storage expenses incurred by the Vendor. The Vendor may, in its sole discretion, without liability or penalty, make partial shipments of Products to Purchaser. Each shipment will constitute a separate sale, and the Purchaser will pay for the units shipped whether the shipment is in whole or partial fulfillment of Purchaser’s purchase order. The Purchaser is responsible for obtaining any import licenses and other consents required for a Product shipment at its own expense, and will provide the licenses and consents to the Vendor before shipment.

    (c) The quantity of any installment of the Products, as recorded by the Vendor on the dispatch from the Vendor’s place of business, is conclusive evidence of the quantity received by the Purchaser upon delivery, unless the Purchaser provides conclusive evidence to the contrary. The Vendor will not be liable for any non-delivery of the Products to the Delivery Location, unless the Purchaser gives written notice to the Vendor of the non-delivery within five (5) days following the date that the Purchaser would, in the ordinary course of business, have received the Products. The Vendor’s liability for any non-delivery of the Products will be limited to replacing the Products within a reasonable time or adjusting the invoice for the Products to reflect the actual quantity delivered and the Vendor shall in no way be liable for any late fees or penalties associated thereof.

  6. TITLE; RISK OF LOSS.

    (a) Risk of loss or damage passes to the Purchaser passes upon delivery to the carrier. If the Purchaser fails to accept delivery of any of the Products on the date set forth in the Vendor’s notice that the Vendor has delivered the Products to the Delivery Location, or if the Vendor is unable to deliver the Products to the Delivery Location on the date because the Purchaser has failed to provide appropriate instructions, documents, licenses, or authorizations, then: (i) risk of loss to the Products will pass to Purchaser; (ii) the Products will be deemed to have been delivered to Purchaser; and (iii) the Vendor, at its option, may store the Products until the Purchaser takes possession of them, at which time the Purchaser will be liable for all costs and expenses resulting from the failure (including but not limited to the cost of storage and insurance)

    (b) Title passes to the Purchaser upon Purchaser’s payment in full for the Products.

  7. INSPECTION; REJECTION OF PRODUCTS.

    (a) As used in this Section 7, “Nonconforming Products” means only the following: (i) the items shipped are different from those identified in Purchaser’s purchase order; or (ii) the labels or packaging of the items incorrectly identifies them. The Purchaser will inspect the Products within five (5) days following receipt thereof (the “Inspection Period”). The Products will be deemed accepted at the end of the Inspection Period unless the Purchaser notifies the Vendor in writing of any Nonconforming Products and furnishes the Vendor with written evidence or other documentation reasonable required by the Vendor.

    (b) If the Purchaser timely and properly notifies the Vendor of any Nonconforming Products, then the Vendor will, in its sole discretion, (i) replace the Nonconforming Products with conforming Products or (ii) credit or refund the purchase price for the Nonconforming Products. At the Vendor’s request, the Purchaser will dispose of the Nonconforming Products or return the Nonconforming Products to the Vendor at the Vendor’s expense. Upon receipt of the Nonconforming Products, the Vendor will promptly refund the monies owed or ship the replacement Products to the Delivery Location at the Vendor’s expense, with the Purchaser retaining the risk of loss until delivery.

    (c) The Purchaser acknowledges and agrees that the remedies set forth in this Section 7 are Purchaser’s exclusive remedies for the delivery of Nonconforming Products, and except as set forth in this Section 7, the Purchaser has no right to return the Products to the Vendor without the Vendor’s written authorization.

  8. LIMITED WARRANTY.  

    (a) The Vendor warrants to the Purchaser that the Products will be free from defects in material and workmanship for a period of twelve (12) months following the date of delivery to the Delivery Location (the “Warranty Period”). Notwithstanding the foregoing, the Warranty Period for consumable Products will in no event exceed recommended replacement intervals set forth in the published specifications and instructions provided by the Vendor or its suppliers or subcontractors Instructions (“Instructions”). If, prior to the expiration of the Warranty Period, the Purchaser informs the Vendor in writing of any breach of this limited warranty, then the Vendor may repair or replace the Products that gave rise to the breach or, in the Vendor’s sole and exclusive discretion, refund the amounts that the Purchaser paid for the Products.

    (b) The foregoing limited warranties do not apply to any costs associated with parts and service, or otherwise, required to repair damage or correct errors attributable to: (i) any defect in Products not manufactured by the Vendor ;  (ii) any Products manufactured according to the Purchaser’s specifications; (iii) alterations undertaken or out-of-specification supplies provided by the Purchaser; (iv) accidents, misuse, negligence or failure of the Purchaser to follow instructions for proper use, care and cleaning of the Products; or (v) failure by the Purchaser to comply in any manner or to any degree with installation, operational or environmental requirements or recommendations.

    (c) The Purchaser will bear the costs of access, de-installation, re-installation and transportation of the Products to the Vendor and back to Purchaser. Any repair or replacement pursuant to this limited warranty will not extend the Warranty Period. The Vendor does not warrant the Products, or any repaired or replacement parts, against normal wear and tear or corrosion. This limited warranty and remedy are expressly conditioned upon: (i) the Purchaser’s payment of the purchase price in full, (ii) the Purchaser giving written notice of the defect, reasonably described, to the Vendor within five (5) days of the time when the Purchaser discovers or ought to have discovered the defect, (iii) the storage, installation, operation, use, and maintenance of the Products in compliance with the Instructions, (iv) the existence of proper records of Purchaser’s operation and maintenance of the Products during the Warranty Period, (v) the Purchaser providing the Vendor with a reasonable opportunity to examine the Products and the aforementioned records, and (vi) the absence of any unauthorized modification or repair of the Products, including without limitation the removal or alternation of any serial numbers or warranty date decals.

    (d) Before any test may be used to evaluate the Products, the Purchaser will: (i) provide the Vendor with reasonable written notification of the test, (ii) allow the Vendor to be present during the test, and (iii) receive the Vendor’s consent to the conditions of the test, which consent will not be unreasonably withheld. If a test is performed on the Products, and the Vendor has not consented to the conditions of the test, then this limited warranty will be void.

    (e) Unless further limited elsewhere in this Agreement, the liability of the Vendor to the Purchaser for any breach of this Agreement, regardless of the basis of the claim, including, without limitation, any claim in tort or of fundamental breach of contract, shall be direct damages only in an amount not to exceed the payments made to the Vendor by the Purchaser to the date of the breach.

    (f) The remedies set forth in this section 8 are the Purchaser’s sole and exclusive remedies for any failure of the Vendor to comply with its obligations under this agreement, including any breach of the limited warranty set forth in this section 8. The Vendor makes no other warranties of any kind, express or implied, of any kind, and the Vendor disclaims all other warranties whatsoever, including but not limited to any implied warranties of merchantability and fitness for a particular purpose.

  9. INDEMNIFICATION.

    (a) The Purchaser will defend, indemnify, and hold harmless the Vendor and its parent company, their respective subsidiaries, affiliates, successors, and assigns and their respective directors, officers, shareholders, and employees from and against any loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, fees (including import and export customs fees), or expense (including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers) (“Claims”) arising out of or occurring in connection with the negligence or willful misconduct of the Purchaser or its employees or agents, including but not limited to: (i) any misuse or modification of the Products by the Purchaser or its employees or agents, (ii) any act (or failure to act) by the Purchaser or its employees or agents in contravention of any safety procedures or instructions that the Vendor provides to the Purchaser or its employees or agents,  (iii) the failure to store, install, operate, or maintain the Products in accordance with the Instructions, or (iv) the breach of any intellectual property laws as a result of the Purchaser’s specifications.  The Purchaser warrants that all specifications of the Product confirm with all applicable laws and in no manner infringes on any intellectual property laws or rights of any third party.  The Purchaser shall indemnify the Vendor from any actions or claims, and the costs associated thereto, relating to the Product specifications set out in the Sales Confirmation.

    (b) The Vendor will defend, indemnify, and hold harmless the Purchaser and its subsidiaries, affiliates, successors, and assigns and their respective directors, officers, shareholders, and employees from and against any Claims arising out of or occurring in connection with the negligence or willful misconduct of the Vendor or its employees or agents.

  10. INFRINGEMENT.
      
    (a) The Purchaser will defend, at its own expense, any action against the Vendor brought by a third party to the extent that the action is based upon a claim that the Products infringe any patents or copyrights, or misappropriate any trade secrets, of a third party. The Purchaser will pay those costs and damages finally awarded against the Vendor in any the action that are specifically attributable to the claim or those costs and damages agreed to in a monetary settlement of the action.

    (b) The foregoing obligations are conditioned on the Purchaser (i) notifying the Vendor promptly in writing of the action, (ii) making no admission of liability and giving the Vendor sole control of the defense thereof and any related settlement negotiations, and (iii) cooperating and, at the Vendor ’s request and expense, assisting in the defense.

    (c) Notwithstanding the foregoing, the Vendor will have no obligation with respect to any infringement claim based upon any: (i) misuse or modification of the Products by the Purchaser or its employees or agents, (ii) use of the Products in combination with other materials, goods, products, or services for which the Products were not intended to be used, (iii) failure of the Purchaser to implement any update provided by the Vendor that would have prevented the claim, (iv) Products that the Vendor made to Purchaser’s specifications or designs.

    (d) This section states the Vendor’s entire liability and the Purchaser’s exclusive remedy for infringement claims and actions.

  11. LIMITATIONS OF LIABILITY.

    (a) Except as expressly stated herein, the Vendor hereby disclaims all representations and warranties, express or implied, by operation of law or otherwise, including any implied or statutory warranties of merchantability and fitness for a particular purpose. For greater certainty, and without limiting the generality of the foregoing disclaimer, the Vendor specifically disclaims any representations or warranties that the Product will operate in accordance with the Purchaser’s expectations or requirements. In this regard, the Purchaser expressly acknowledges that its decision to purchase the Product was independently determined and not the consequence of, or in reliance upon in whole or in part, any assessment or advice by the Vendor. All products are manufactured to commercial quality standards and do not include any implied or statutory warranties of merchantability and fitness for any propose nor have they been manufactured with any additional standards for fitness of purpose unless such additional standards are clearly set out in the purchase order or other written method by the Purchaser and have been explicitly accepted by the Vendor. Any additional standards, structural requirements or items for fitness of purpose must be agreed upon prior to manufacturing.

    (b) In no event will the Vendor be liable for any indirect, special, incidental, exemplary, or consequential damages, including but not limited to any loss of use or under- utilization of labor or facilities, loss of revenue or anticipated profits, lost data, and costs of procurement of substitute goods, regardless of the form of action, whether in contract, tort, or otherwise, even if the Vendor has been advised of the possibility of the damages.

    (c) Except for death or bodily injury resulting from the Vendor’s negligence or willful misconduct, the Vendor’s total liability for all claims arising out of, or relating to, the goods will be limited to general money damages in an amount not to exceed the total purchase price for the goods giving rise to the claim.

  12. CHANGES.  The Vendor reserves the right to alter, modify, or redesign its products without any obligation to replace previous shipments to the Purchaser.

  13. NO LICENSE. The sale of the Products will not confer upon the Purchaser any license, express or implied, under any patents, trademarks, trade names, or other proprietary rights owned or controlled by the Vendor, its subsidiaries, affiliates, or suppliers; it being specifically understood and agreed that all the rights are reserved to the Vendor, its subsidiaries, affiliates, or suppliers. Without limiting the foregoing, the Purchaser will not, without the Vendor’s prior written consent, use any trademark or trade name of the Vendor in connection with any the Products, other than with respect to the resale of the Products pre-marked or packaged by or on behalf of the Vendor.

  14. TERMINATION.  In addition to any other remedies that the Vendor may have, the Vendor may terminate this Agreement with immediate effect upon written notice to the Purchaser, if the Purchaser: (i) fails to pay any amount when due under this Agreement and the failure continues for five (5) days after Purchaser’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

  15. CONFIDENTIALITY. 

    (a) All non-public, confidential, or proprietary information of the Vendor, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, that the Vendor discloses to Purchaser, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and regardless of whether marked, designated, or otherwise identified as “confidential,” in connection with the Agreement is confidential, solely for the use of performing the Agreement, and may not be disclosed or copied unless authorized in advance by the Vendor in writing. Upon the Vendor’s request, the Purchaser will promptly return all documents and other materials received from the Vendor. The Vendor will be entitled to injunctive relief for any violation of this Section 15, without having to post bond or establish the insufficiency of a remedy at law. This Section 15 does not apply to information that is: (a) in the public domain; (b) known to the Purchaser at the time of disclosure; or (c) rightfully obtained by the Vendor on a non-confidential basis from a third party.

    (b) In the event the Purchaser provides any patterns, drawings, specifications or other materials in relation to the product to the Vendor, the Vendor will take all reasonable commercial best efforts to store same safely but shall take no responsibility for damage, loss, theft or other manipulation of said items and the Purchaser specifically acknowledges that it remains responsible for said items and the replacement, maintenance or repair of same if patterns, castings, dyes or other materials become lost, worn, used or misplaced.

  16. FORCE MAJEURE.  The Vendor will not be liable for any failures or delays caused by strikes, differences with workers, or any causes beyond the reasonable control of the Vendor, including but not limited to fires, floods, accidents, action of any governmental authority, war, insurrection or riots, or shortages of labor, energy, raw materials, production facilities, pandemics or transportation. Where delays or failures are caused by labor or supply difficulties, the Vendor will not be obligated to seek or obtain any settlement that, in the Vendor’s sole judgment, is not in the Vendor’s best interest.

  17. COMPLIANCE.  Each party will comply with all applicable laws, regulations, and ordinances, and the Purchaser will comply with the export and import laws and regulations in effect as of the date of shipment of the Products of any country involved in the transactions contemplated by the Agreement.

  18. GOVERNING LAW; VENUE; DISPUTE RESOLUTION.

    (a) All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the Province of Ontario. Any legal suit, action or proceeding arising out of or relating to these Terms will be instituted in the courts located in the City of Brantford, Ontario. Each party irrevocably submits to the exclusive jurisdiction of the courts in any the suit, action or proceeding.

    (b) The Vendor will have the sole and exclusive right to determine whether any dispute, controversy or claim arising out of or relating to the Agreement, or the breach thereof, will be submitted to a court of law or arbitrated. The venue for any the arbitration will be in Brantford, Ontario. The arbitrator’s award may be confirmed and reduced to judgment in any court of competent jurisdiction. In the event the matter is submitted to a court, the Vendor and the Purchaser hereby agree to waive their right to trial by jury and covenant that neither of them will request trial by jury in any the litigation.

  19. CHOICE OF LANGUAGE.  It is by the express intention of the parties hereto that the present Agreement and all its related documents be drafted in English. Il est de l’intention expresse des parties à la présente Convention (connaissement, bon de commande, bon de conditionnement ou facture) et tout document s’y rattachant soient écrit en langue anglaise.

  20. SURVIVAL.  In addition to any other term whose context may so require, the terms of this Agreement will survive any cancellation of the purchase order.

  21. MISCELLANEOUS.  The Purchaser acknowledges that is has not been induced to purchase any the Products from the Vendor by any representation or warranty not expressly set forth in this Agreement. These Terms and the Sales Confirmation constitute the entire agreement of the parties and supersede all existing agreements and all other oral or written communications between them concerning its subject matter. None of the Terms may be added to, modified, superseded, or otherwise altered, except by a written document signed by an authorized representative of the Vendor that specifically references these Terms and states that it modifies them. If there is a conflict between the provisions of the Sales Confirmation and these Terms, then the terms of the Sales Confirmation will govern. No waiver by the Vendor of any of the provisions of these Terms is effective unless explicitly set forth in writing that specifically references these Terms and is signed by the Vendor. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The Section headings contained in these Terms are for convenience only and will not affect the interpretation of any provision. If any provision of this Agreement is held to be prohibited or unenforceable, the provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. The Purchaser will not assign any quotation or accepted order for the Products, in whole or in part, without the Vendor’s prior written consent.