TERMS AND CONDITIONS OF SALE
WE ACKNOWLEDGE WITH THANKS YOUR PURCHASE ORDER. WE ARE PREPARED TO ACCEPT THE ORDER AND/OR ANY OTHER ORDERS ONLY IF YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS, SOME OF WHICH MAY MODIFY THE COMPARABLE TERMS AND CONDITIONS ORIGINALLY PROPOSED IN YOUR ORDER. YOU (as the "Buyer") SHOULD ADVISE US PROMPTLY IF ANY OF THE TERMS AND CONDITIONS BELOW IS NOT ACCEPTABLE TO YOU. UNLESS YOU GIVE SUCH NOTICE, YOU WILL HAVE ACCEPTED THESE TERMS AND CONDITIONS AND WE WILL PROCEED AS THOUGH THEY ARE MUTUALLY BINDING ON BOTH OF US. DIFFERENT TERMS AND CONDITIONS AT A DIFFERENT PRICE FROM THOSE GENERALLY APPLICABLE CAN BE NEGOTIATED ON REQUEST, BUT SHALL APPLY ONLY IF SIGNED BY A VICE PRESIDENT OF SELLER.
1.Delivery dates by Seller for the products ordered by Buyer ("Products") are approximate and Seller will not be liable for any delays in delivery for whatever reason unless the parties have expressly agreed in a writing signed by Seller to specific liquidated damages for late deliveries.
2.Prices indicated by Seller are based upon the prices in effect as of the date of this order. Unless otherwise agreed to in a writing signed and delivered by Seller's authorized representative, prices quoted by Seller are subject to change without notice at any time. Unless expressly stated otherwise, all excise, privilege, occupational, sales, use and other taxes, foreign and domestic, applicable to the sale under the order shall be added to and become part of the purchase price.
3.Products that are not in conformance with the description found in the order are returnable for credit or replacement provided Seller is advised in writing within 30 days of delivery by Seller of such non-conformance and written authorization therefore is given by Seller. Approved returns must be shipped freight prepaid and arrive in good condition to qualify for credit or replacement. Except in the case of any Products found to be nonconforming, Buyer must make payment of the purchase price within the time allotted for payment even if Buyer has not completed its inspection of the Products, but such payment shall not constitute acceptance of the Products or impair Buyer's rights or remedies it may have hereunder for nonconforming Products.
4.Order's for special Products cannot be canceled or returned.
5.If delivery is rescheduled by Buyer to more than six months beyond the originally contracted delivery date, Seller reserves the right to cancel the contract created by Seller's acceptance of the order and collect cancellation charges. Unless otherwise specified all shipments shall be made by any mode of transportation deemed suitable to Seller, F.O.B. Seller's loading dock, and risk of loss to the Products shall pass to the Buyer upon delivery by Seller to the carrier for shipment.
6.All intellectual property and all tooling and other tangible manufacturing assets of Seller used to fulfill Buyer's order shall remain the property of Seller and no right or interest of any kind whatsoever in any of the foregoing shall be construed or interpreted as having been granted or otherwise conveyed to Buyer, either expressly, or by implication, estoppel or otherwise. Any tooling sold to Buyer will be limited to that which is separately quoted by Seller, which quote expressly states that the price indicated therein by Seller is "for purchase" or "for sale" of the tooling described therein rather than as an additional charge to defray, whether whole or in part, Seller's tooling costs. Buyer represents and warrants that it has title to any material, specification or design it may provide to Seller, and that Seller's possession and reliance upon the same in connection with the manufacture, sale or use of the Products shall not constitute infringement of any patent, trade secret or other third party interest.
7.Products manufactured and/or sold by Seller shall, when properly installed and maintained, be fit for the ordinary purposes for which such goods are used, and shall be free of defects in material and workmanship at time of shipment. In no event shall Seller be obligated under this warranty or otherwise in any whatsoever for normal wear and tear or for any Product which, in Seller's sole and exclusive determination, has been subjected to accident, abuse, misapplication, improper repair or alteration, improper installation or maintenance, excessive operating conditions or for defects or failures resulting from Buyer's specifications or designs, or otherwise caused by Buyer, including without limitation defects or failures resulting from Buyer's manufacture, distribution, sale or promotion of its own products. THERE ARE NO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, WHETHER EXPRESS OR IMPLIED, EXCEPT OF TITLE, WHICH EXTEND BEYOND THAT EXPRESSLY STATED ABOVE IN THIS PARAGRAPH.
8.Seller's sole liability and Buyer's sole and exclusive remedy for Seller's breach of warranty or otherwise is expressly limited to the replacement of any Products sold hereunder, which Seller determines, by laboratory examination, are not in conformance with the limited warranty of Seller expressly stated herein, provided Seller is advised writing of such non-conformance within thirty (30) days of the date of discovery thereof and said non-conforming Products are returned F.O.B. Seller's warehouse promptly thereafter but not later than twelve (12) months from the date of shipment thereof by Seller. Anything contained herein to the contrary notwithstanding, Seller retains the right, at Seller's sole and exclusive option, to render credit for or refund of the purchase price in lieu of furnishing a replacement product.
9.IN NO EVENT SHALL SELLER BE LIABLE HEREUNDER OR OTHERWISE FOR LOSS OF PROFITS, OR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR IN ANY AMOUNT, ARISING OUT OF THIS AGREEMENT OR IN CONNECTION WITH THE PRODUCTS PROVIDED BY SELLER HEREUNDER, EVEN IF SELLER HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. SELLER'S TOTAL AND EXCLUSIVE LIABILITY FOR NONPERFORMANCE UNDER THIS AGREEMENT, INCLUDING NONPERFORMANCE CAUSED BY SELLER'S GROSS OR ORDINARY NEGLIGENCE, SHALL BE STRICTLY LIMITED TO THE COST OF REPLACEMENT OF THE PRODUCTS PROVIDED HEREUNDER. IN NO EVENT SHALL DAMAGES EXCEED THE AMOUNT EQUAL TO THE PRICE OF THE PRODUCTS PAID TO SELLER PURSUANT TO THIS AGREEMENT, REGARDLESS OF WHETHER OR NOT SUCH EVENT WAS FORSEEABLE BY THE PARTIES.
10.Shipments hereunder shall be at all times subject to the approval of Seller's credit department. Seller's remedies with respect to any breach of the agreement made between Buyer and Seller shall be cumulative, and, without limiting the generality of the foregoing, Seller shall have the right to suspend its performance or terminate the agreement in the event of Buyer's nonpayment of the purchase price for any delivery of Products even though the agreement may provide for the delivery of Products in more than one installment.
11.These terms and conditions constitute the final, complete and exclusive agreement between Buyer and Seller. No reference herein to Buyer's inquiry or order shall in any way incorporate different or additional terms or conditions which are hereby objected to. No recision, waiver, discharge, or modification of the agreement shall be binding upon Seller unless made in writing signed and delivered by Seller's authorized representative. No prior course of dealing or usage of trade not expressly set forth herein shall be admissible to explain, modify or contradict the agreement. Buyer acknowledges and agrees that any and all representations, promises, warranties or statements by Seller's salesperson or agent that differ in any way from the terms of this writing shall be given no force or effect. The invalidity of any one provision constituting part of the agreement between Buyer and Seller shall not affect the validity of the remainder of such provision or the remaining provisions of the agreement.
12.The agreement shall be governed and controlled as to validity, enforcement, interpretation, construction, effect and in all other respects by the laws of the Province of Ontario, Canada. without reference to the conflicts of laws principles thereof. Any action for breach of the agreement shall be commenced within one (1) year after the cause of the action has accrued.
08/24/2019 6:06:25 AM UTC