TERMS AND CONDITIONS OF SALE – Form 2979 (06/21/14)
The following terms and conditions shall apply to any such agreement (as defined herein) between buyer and seller (as defined herein) for new or refurbished equipment, parts, or repairs (collectively referred to herein as GOODS) and/or services, including, but not limited to, on-site services, technical or advisory services or shop services (referred to herein as SERVICES).
1. AGREEMENT The following terms and conditions shall apply to this agreement between Pitch Pole Skiff Products Inc. or any of its divisions, subsidiaries or affiliates (as identified) (SELLER) and its customer as identified on SELLER’S invoice (BUYER), as evidenced by BUYER’S purchase order to SELLER and SELLER’S invoice of same to BUYER (all collectively referred to herein as AGREEMENT). Except as otherwise stated herein, no other terms shall be accepted or applicable to this AGREEMENT. All other terms and conditions, including those of BUYER or BUYER’S customer, are hereby expressly rejected, except for those on SELLER’S invoice to the extent it defines the scope of supply, price and/or quantity. BUYER and SELLER expressly agree and acknowledge that the United Nations Convention for the International Sale of Goods shall not apply to this AGREEMENT. All other remedies at law are hereby waived by the parties hereto. No modifications to these terms shall be accepted unless specifically agreed to in writing and signed by an authorized representative of SELLER. If such a writing should exist for the supply of GOODS or SERVICES to BUYER from SELLER as otherwise covered by this AGREEMENT, and is signed by authorized representative of SELLER, then said writing shall supercede the terms of this AGREEMENT to the extent there is any conflict between the two documents. In the case of such a writing, this AGREEMENT shall be considered incorporated into and made a part of said writing unless expressly rejected therein. If the GOODS or SERVICES require BUYER-supplied information, design or assembly, or dictate SELLER’S use of certain parts or other equipment (collectively “BUYER content”), BUYER shall be solely responsible for such BUYER content, including, without limitation, its accuracy, suitability, warranty and effect on SELLER-supplied Goods or Services. Installation and setup of GOODS is not included in the price unless otherwise stated on SELLER’S invoice, and is the sole responsibility of BUYER unless otherwise specified by BUYER and agreed to by SELLER.
2. PRICE AND TERMS OF PAYMENT AND SHIPMENT The price and payment terms (including payment currency) for the GOODS or SERVICES shall be as designated on SELLER’S invoice, except as otherwise stated herein. Said invoice payment terms shall supersede any previous payment terms. Delays caused by BUYER shall not excuse non-payment. All shipments of GOODS shall be made FCA SELLER’S plant, (Incoterms 2000), unless otherwise stated on SELLER’S invoice. BUYER warrants there will be no diversion of any shipment that is contrary to any applicable law. The price does not include any applicable taxes unless otherwise stated on SELLER’S invoice. SELLER may suspend work on GOODS or SERVICES if BUYER fails to make timely payment(s) of SELLER’S invoice(s). Any costs associated with such suspension(s) shall be for BUYER’S account. Acceptance of payment shall not waive or limit any right or
remedy of SELLER. Acceptance of specially endorsed checks of any kind shall not waive or limit any right or remedy of SELLER.
3. DELIVERY SELLER shall not be held responsible for any loss or damage arising from fire, strikes or labour troubles, governmental intervention, weather, acts of God or nature, raw materials shortages, suspension due to lack of timely payment from BUYER to SELLER or any other act or force beyond the control of SELLER. All delivery dates as set forth on SELLER’S order acknowledgment refer to the completion of manufacture and availability for shipment of GOODS or completion of SERVICES and are SELLER’S best estimate thereof and are subject to change. Title and risk of loss or damage to GOODS shall pass to BUYER upon shipment by SELLER to the FCA point. SELLER shall have the right to make partial shipments (and invoices for same) of GOODS unless otherwise requested by BUYER and agreed to by SELLER in writing. In the event BUYER is unable to receive shipment of GOODS, SELLER will store same at BUYER’S risk and expense. All costs associated with any delay occasioned by BUYER for SELLER’S performance of SERVICES shall be for BUYER’S account.
4. WARRANTY GOODS: SELLER warrants against defects on all GOODS of SELLER manufacture for a period of three (3) months from date of FCA shipment. SERVICES: SELLER warrants against defects in workmanship on all SERVICES performed by SELLER for a period of thirty (30) days from date of completion of such SERVICES. SELLER’S obligation to repair or replace any defective GOODS or re-perform any defective SERVICES during the warranty period shall be BUYER’S exclusive remedy and SELLER’S sole liability arising under this warranty or any warranty claim made by BUYER. This warranty is given in lieu of all other warranties, express or implied, including the implied warranties of merchantability and fitness for a particular purpose. Seller shall not be responsible for labour or other charges resulting from removal of defective goods or re-performance of defective workmanship, charges for transportation, handling, shipping or travel. None of the goods furnished by seller shall be deemed defective by reason of failure to resist the strain of undue actions such as extreme conditions, extreme or unsafe use, modifications by buyer, lack of maintenance, racing, collisions, or capsize.
5. CANCELLATION This AGREEMENT may be canceled by BUYER only upon written consent of SELLER and upon payment of reasonable cancellation charges, which shall include all of SELLER’S applicable costs to date and a reasonable amount of profit.
6. PATENTS SELLER shall indemnify BUYER against liability and damages on claims based solely on infringement of any United States Letters Patent arising out of the manufacture or use of any of SELLER’S GOODS furnished, provided that BUYER promptly notifies SELLER of any such claim and gives SELLER ample opportunity to defend in its own behalf against such claim.
7. LIMITATION OF LIABILITY Notwithstanding any provision in this AGREEMENT or elsewhere to the contrary: (a) SELLER’S maximum liability at any time for any cause whatsoever shall not exceed the contract price of the item, service or equipment at issue and; (b) SELLER shall not be liable for any special, incidental, indirect or consequential loss or damage of any nature, arising at any time, from any cause whatsoever, including loss of revenue or profit, injury or loss of life.
8. LAWS This AGREEMENT shall be governed by the laws of the jurisdiction of SELLER’s issuing office and BUYER agrees to subject itself to the jurisdiction of the courts of that jurisdiction and that such venue shall be exclusive regarding disputes arising out of this agreement. All controversies, disputes or claims arising out of or relating to this AGREEMENT or the performance, enforcement, breach, termination or validity thereof, including the determination of the scope of the agreement to arbitrate, shall finally be settled by arbitration in Montreal, QC, Canada, conducted in the English language by three arbitrators, in accordance with the rules of the International Chamber of Commerce. Each party shall choose one arbitrator and the third shall be chosen by the other two arbitrators. Any arbitration decision shall be final and non-appealable. The basis for the arbitrators’ decision shall be based solely on this agreement and any documents incorporated thereby. Otherwise, the law of the seller’s jurisdiction shall be applied.
10. ADDITIONAL TERMS SELLER reserves the right to file a mechanic’s or other lien in the case of BUYER’s failure to pay for GOODS and SERVICES. Return of GOODS shall require prior written approval of SELLER. BUYER warrants that no part of the GOODS shall be utilized in any type of unsafe or extreme conditions. Furthermore, BUYER indemnifies SELLER against any liability resulting from the use of goods being provided.
11. GENERAL PROVISIONS / ENTIRE AGREEMENT EXCEPT AS OTHERWISE PROVIDED HEREIN, THIS DOCUMENT SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN BUYER AND SELLER AND CAN ONLY BE MODIFIED BY A WRITING SIGNED ON BEHALF OF BUYER AND SELLER BY THEIR RESPECTIVE, DULY AUTHORIZED REPRESENTATIVES. SHOULD ANY PART OF THIS AGREEMENT BE DEEMED INVALID BY A COURT OF LAW, THAT SHALL NOT CONSTITUTE AN INVALIDATION OF ANY OTHER PART OF THIS AGREEMENT. SECTION HEADINGS HEREIN ARE FOR PURPOSES OF CLARITY ONLY AND ARE NOT TO BE CONSIDERED A PART OF THIS AGREEMENT. SELLER’S ACCEPTANCE OF BUYER’S PURCHASE AGREEMENT IS EXPRESSLY MADE CONDITIONAL ON BUYER’S ASSENT TO SELLER’S TERMS AND CONDITIONS AS SET FORTH HEREIN AND THE REJECTION OF ANY OTHER TERMS. ACCEPTANCE BY BUYER OF GOODS OR SERVICES SHALL CONSTITUTE UNEQUIVOCAL ACCEPTANCE OF THE TERMS AND CONDITIONS CONTAINED HEREIN. PAST PRACTICE, INDUSTRY STANDARDS OR PRACTICES OR PREVIOUS COURSE OF DEALING OR TRADE SHALL NOT CONSTITUTE ANY SUPERCESSION OF THE TERMS CONTAINED HEREIN OR ON SELLER’S INVOICE. FAILURE OF SELLER TO EFFECT ANY AVAILABLE RIGHT OR REMEDY SHALL NOT OPERATE AS A WAIVER OF SAME. BUYER ACKNOWLEDGES THE IMPORT OF THESE TERMS & CONDITIONS CONTAINED HEREIN AND UNDERSTANDS THE CONTRACTUAL OBLIGATIONS CREATED THEREBY.