Terms & Conditions of Sale
A. Approval of Contracts
All contracts or orders are conditional upon clearance by seller’s credit department or credit manager or accounts department.
B. Prices and Delivery
The delivery information given is estimates and subject to change. The seller shall have the right to ship goods in one or more shipments or deliveries. Each shipment or delivery shall be constructed as a separate sale under the terms and conditions of this contract.
Unless otherwise agreed, shipments with the F.O.B. Seller’s plant and seller shall not be responsible for freight, transportation, insurance, storage, handling, demurage or similar charges. If such charges are included in the sale price, any increase in rates becoming effective after the quotation shall be payable by the buyer.
Unless otherwise stated, payment will be due thirty (30) days after shipment of goods. Overdue accounts will be subject to an interest charge of one one-half per cent per month (effective annual rate of 19.562 per cent per annum) and shall give the seller the right to decline to make further shipments of the goods covered in the contract except upon receipt of cash, certified cheque, bank draft or other satisfactory security, or seller may cancel all or any part of the undelivered goods without notice holding buyer responsible for any deficiency or bill all or any part of the undelivered goods to buyer as of contract date of shipment. In the event buyer becomes insolvent or bankrupt or in case seller shall deem the buyer to be a financial risk prior to fulfillment of the terms of payment of the contract, seller may forthwith terminate the same upon written notice thereof to buyer. Such termination shall not prejudice seller’s right to such amounts as are then due under the contract.
Prices indicated herein, unless otherwise agreed in writing, are exclusive of any present or future federal, provincial, municipal or other sales taxes with respect to the material studies, excise taxes of any nature or kind, upon or calculated by the receipts from the sale or by the value of the materials sold and taxes in respect of the transportation of the material. If seller is required by applicable law or regulation within Canada or any other country to pay or collect any such tax or taxes in respect of any transaction, then the amount thereof shall be added to and become part of the price payable by the buyer.
E. Non-Delivery of Goods
Seller will not be liable for failure to make delivery of or the late delivery of all or any part of the goods purchased under this contract due to any reason, contingency or circumstance, whether or not within its control, including, but without limiting the generality of the foregoing: lack of or inability of obtain raw materials, labour, fuel or supplies, fire damage to or destruction in whole in part of materials or manufacturing plant, strike or other labour unrest or any other cause which prevents or hinders the manufacture of delivery of the goods covered by the contract, any of which shall receive seller from performance of the contract. Seller shall not be liable for any damages suffered to buyer by reason of non-delivery or late delivery of goods covered under this contract.
F. Title of Goods
Title to all goods covered under this contract shall remain exclusively in the sellers and title shall not pass until payment in full of all invoices or accounts rendered including cost of goods, packaging, crating, shipping or freight charges, federal, provincial or local taxes, rates and tariffs, insurance and interest charges and any other sums or charges applicable. Buyer shall at all times take all steps necessary to preserve seller’s title in property to the goods covered by this contract.
Upon failure of the buyer to meet its obligations under this contract, when they fall due, all sums due and owing to the seller shall forthwith become due and payable and the seller, its servants or agents, may, with or without legal process, take possession of the goods (and may for that purpose enter upon the premises where the goods are located) and sell the same at public auction or private sale, with or without the notice to the buyer unless such notice is required by law. The net proceeds of such sale shall be applied firstly to all reasonable costs, charges, expenses and fees incurred by the seller or agent or agents appointed by the seller, all of which costs, charges, expenses and fees are secured hereby and secondly, the payment of the indebtedness. Any balance of proceeds shall be paid to whomever is entitled to such balance. If the net proceeds of sale are not sufficient to pay the sums due under this contract, the buyer shall pay the deficiency to the seller on demand by the seller.
G. Return of Goods
If the materials supplied fails to conform to specifications contained in this contract or if seller agrees that the said material is defective, seller will repair or replace the material or, at seller’s option, reimburse buyer the purchase price therefore against return of the material if requested and seller shall be without any other liability in connection therewith. Except to the extent expressly provided in the preceding sentence, seller will under no circumstances be liable for any loss, damage or expense directly or indirectly arising because of the material or its use, notwithstanding the fact that the material for any reason fails to conform to specifications or proves to be defective, and notwithstanding the furnishing of any test, report or certificate with respect to the material or any knowledge of buyer’s end use, and buyer assumes the risk of all such loss, damage and expense. Any claim that material fails to conform to specifications or is defective shall be deemed waived by buyer unless made in writing within three months from receiving the material to which such claim relates.
No goods shall be returned to seller, without seller’s written consent. Seller expressly excludes all warranties implied by law, including those implied by the sale of goods act. Except as provided in this paragraph, seller makes no express warranty with respect to materials supplied and not warranty of any kind, whether of quality, merchantability or fitness for any particular purpose or otherwise shall be implied with respect thereto.
Materials furnished by seller are to be within the limits and of the size published by seller and subject to standard commercial tolerance for variations unless otherwise specifically provided for.
Any request by buyer for cancellation or alteration of an order after production thereof or tooling thereof has commenced, to be binding upon seller, must be accepted by seller and at seller’s option, will be subject to fair charges for expenses incurred and work executed up to the time of acceptance by seller of such request as well as fair charges incurred resulting from the cancellation or alteration to the time of delivery of goods to buyer.
If any material shall be manufactured and sold by seller to meet buyer’s particular specifications or requirements and is not part of seller’s standard line offered by it to the trade generality in the usual course of seller’s business, buyer agrees to defend, protect and save harmless seller against all suits at law or in equity and from all damage, claims and demands for actual or alleged infringement of any Canadian or foreign patent and to defend any suit or actions which may be brought against seller for any alleged infringement because of the manufacture and sale of such material.
I. Entire Contract
The whole contract between the parties hereto as stated herein and may be changed by memorandum signed by both parties or their duty authorized agents.
There are no warranties, conditions except as set out in this contract and except as may be expressly provided for in writing between the parties hereto.
Buyer shall not assign any rights or interest in this contract without permission of seller and any assignment and breach of this provision shall, at seller’s option, render this contract void and unenforceable by buyer who shall remain liable to seller for any damages occasioned by such a breach.
During the period from the time of delivery to the buyer until payment in full for the goods subject to this contract, the buyer shall insure the goods in the joint names of the seller and the buyer against all risks of physical loss or damage.
M. Applicable Law
This contract shall be interpreted and governed in accordance with the law of the Province of Ontario whose courts shall have exclusive jurisdiction in case of dispute, claim or demand arising out of this contract.