Terms of Sale
All sales by Seller are made pursuant to the following terms. No other or additional terms or conditions are or will be accepted.
ACCEPTANCE OF ORDERS
All orders, whether placed directly with Seller or through an agent, and all subsequent amendments thereto, are subject to final approval and acceptance by Seller.
LIMITATION OF WARRANTIES, REMEDIES AND DAMAGES
The warranty stated below is given in place of all other warranties, express or implied, statutory or otherwise, with respect to the goods being sold, including, without limitation any warranty of merchantability, fitness for a particular purpose or otherwise. No promise or affirmation of fact made by any agent or representative or Seller shall constitute a warranty by Seller or give rise to any liability or obligation.
SELLER WARRANTS THAT ON THE DATE OF DELIVERY TO CARRIER, THE GOODS ARE FREE FROM MANUFACTURING DEFECTS IN MATERIALS.
Seller’s sole obligation in the event of a breach of warranty or breach of contract or for negligence or otherwise with respect to goods sold shall be exclusively limited to replacement, F.O.B. Seller’s point of shipment, of any parts which Seller determines to have been defective or, if Seller determines that replacement is not feasible, to a refund of the purchase price upon return of the goods to Seller. Any action to which Buyer may be entitled against Seller for breach of warranty, breach of contract, negligence or otherwise, shall be extinguished one year after such cause of action has accrued unless Buyer has, prior to the expiration of such one-year period commenced proceedings against Seller.
No claim against Seller for any defect in the goods shall be valid or enforceable unless Buyer’s written notice thereof has been received by Seller within one year from the date of shipment of the goods.
Seller shall not be liable for any damage, injury or loss arising out of or relating to the use of the goods if, prior to such damage, injury or loss, such goods are:
a) damaged or misused following Seller’s delivery to carrier;
b) not maintained, inspected or used in compliance with applicable law and Seller’s written instructions and recommendations;
Without in any way limiting the foregoing, Seller shall, under no circumstances, be liable for incidental or consequential damages whether for lost profits, loss of opportunity or otherwise.
TERMS OF PAYMENT
Unless otherwise stated herein, payment of each invoice shall be received by Seller within 30 days after date of shipment of goods. Any balance unpaid after the required payment date shall be subject to interest at the rate of 18% per annum calculated from such date.
Any applicable sales, use, excise and other taxes including Goods and Services tax under the Excise Tax Act (Canada) applicable to this transaction and the goods and/or services furnished by Seller are not included in the price and shall be paid by Buyer when due. If Seller pays any such taxes, Buyer shall reimburse Seller upon demand.
DELIVERY AND DELAYS
Unless otherwise specified herein, deliveries shall be F.O.B. Seller’s point of shipment and title to goods and risk of loss to goods shall pass to Buyer upon Seller’s delivery to carrier. All shipping dates are approximate and Seller shall not be liable for loss or damage because of delays occasioned by labour disputes, damage to facilities, acts of God, riot, war, failure of suppliers or subcontractors to meet scheduled deliveries or any other cause beyond Seller’s reasonable control or making its performance commercially impracticable.
Notwithstanding other provisions hereof if shipment is delayed at Buyer’s request, the goods shall be deemed to be stored at Buyer’s risk and expense and Buyer shall be totally responsible for the full purchase price of the goods and storage costs relating thereto. Buyer shall pay the full price of the goods and storage costs within 30 days after mailing of the invoice relating thereto.
BUYER’S INSPECTION UPON RECEIPT OF SHIPMENT
Buyer shall inspect the goods as soon as received. If any loss or damage is discovered Buyer must notify both the carrier and Seller at once. Seller will co-operate with Buyer in filing claims with the carrier. If Buyer fails to inspect the goods as soon as received, Buyer shall be deemed to have received all such goods without any damage.
In consideration of the sale by Seller to Buyer of the goods and as a general and continuing security for the payment of all amounts owing for the goods, including any ultimate unpaid balance thereof, Buyer hereby grants to Seller a security interest in the goods which shall constitute Collateral, as that term is defined in the Personal Property Security Act, R.S.O., 1990, c. P. 10 (the “PPSA”). Buyer authorizes Seller to file a financing statement or statements relating to the goods under the PPSA as Seller may deem appropriate and to perform any other act or acts, which Seller deems appropriate to perfect and continue its security interest in the goods and to protect and preserve the goods.
Shipment by Seller of the goods shall at all times be subject to the prior approval of its credit personnel. Seller may, at any time, decline to make shipment except upon receipt of prior payment or upon other terms and conditions or security satisfactory to its credit personnel.
This instrument constitutes the entire agreement between Seller and Buyer, superseding all previous understandings and writings regarding this transaction. Any amendment or modification of this agreement shall be void unless in writing and signed by Seller and Buyer.
No delay or omission by Seller in exercising any right or remedy hereunder shall be a waiver thereof or of any other right or remedy, and no single or partial waiver thereof shall preclude any other or further exercise thereof or the exercise of any other right or remedy. All rights and remedies of Seller are cumulative.