1. Acceptance. The following terms and conditions
of sale are applicable to all sales of Products or
Services,and all quotations, order acknowledgements,
and invoices from Canada Powertrain, ("Seller") and to all Purchase Orders from Seller's customers ("Purchasers") and are the only terms and conditions applicable to the sale of Seller's Products or Services, except those relating solely to prices, quantities, delivery schedules, terms of payment, invoicing, shipping instructions, or descriptions of the products set forth in Purchaser's Purchase Orders (collectively, "Purchase Order Terms"). Purchase Orders, if accepted by Seller, are accepted subject to the terms and conditions set forth herein. Seller hereby rejects any additional or different terms or conditions proposed by Purchaser, whether or not contained in any of Purchaser's business forms or in Purchaser's website, and such additional or different terms and conditions shall be void and of no effect unless specifically agreed to by Seller in writing.
Purchaser's acceptance of Products or Services
("Products or Services") called for in said Purchase
Order shall constitute its acceptance of the following
terms and conditions of sale (this "Agreement"). Any
changes to these terms and conditions must be in
writing and signed by Seller.
2. Quotations. Quotations are only valid in writing
and for 30 days from the date of the quotation unless
otherwise notified. All quotations by Seller are subject to change or withdrawal without prior notice to Purchaser unless otherwise specifically stated in the quotation. Quotations are made subject to approval by Seller of Purchaser's credit. Seller shall have no obligation to sell or deliver Products or Services covered by Seller's quotation unless and until Seller issues an order acknowledgement form or upon the shipment of Products or commencement of Services by Seller.
3. Prices. Prices are in Canadian Dollars unless otherwise stated and pre-arranged and are subject
to change without notice. Time of payment is of the
essence. All orders are accepted subject to Seller's
price in effect at time of shipment..
4. Clerical Error. Seller reserves the right to correct
all clerical errors in any quotation, order
acknowledgment or invoice.
5. Terms of Payment. The inspection rights granted
to Purchaser will not affect or alter the payment terms
or the timing of Purchaser's payment obligations.
Under no circumstances will Purchaser have a right of set-off. Unless otherwise expressly agreed to by Seller in writing, terms of payment are 30 days net from the date of Seller's invoice. No discount shall be allowed on transportation charges. .
If Purchaser fails to make any payment as
required, Purchaser agrees to indemnify Seller for all
costs and expenses, including reasonable attorney fees, court costs, and associated expenses incurred by
Seller.
6. Credit Approval. All shipments to be made
hereunder shall at all times be subject to the approval
of Seller's credit department. Seller may invoice
Purchaser and recover for each shipment made
pursuant to this Agreement as a separate transaction
without regard to any other order or agreement with
Seller, or if, in Seller's sole judgment, the financial
responsibility of Purchaser is or becomes
unsatisfactory, then Seller may, at its option and
without prejudice to any of its other remedies, (a)
defer or decline to make any shipments hereunder
except upon receipt of satisfactory security or cash
payments in advance, and / or (b) terminate all
Purchase Orders of Purchaser.
7. Cancellation. Once Seller has either accepted a
Purchase Order or has begun taking actions with
respect to such Purchase Order, such Purchase Order
cannot be cancelled, terminated or modified by
Purchaser in whole or in part except with Seller's
consent in writing and then only upon terms and
conditions to be agreed upon which shall include
protection of Seller against all losses. Purchaser shall
indemnify Seller for any costs incurred, including
material and labor costs, in connection with any
Purchase Order that Purchaser desires to cancel,
terminate or modify.
8. Inspection / Non - Conforming Shipments.
Seller grants Purchaser the right to inspect Products
for a period of five (5) business days immediately
following delivery ("Inspection Period"). Purchaser
must notify Seller of any Products that do not conform to the terms applicable to their sale within the inspection period, and afford Seller a reasonable
opportunity to inspect such Products and cure any
nonconformity. If Purchaser fails to provide Seller
with notice of nonconformity within the Inspection
Period, Purchaser shall be deemed to have accepted
the Products. Purchaser will have no right to return
any Product without Seller's prior written authorization. Any return authorized by Seller must be made in accordance with Seller's return policies then in effect and must be accompanied by a Returned Goods Authorization ("RGA") from Seller. Purchaser will be responsible for all costs and expenses associated with any returns of Products and will bear the risk of loss or damage of such Products, unless Seller agrees otherwise in writing or determines that the Products do not conform to the applicable terms of sale. Seller, in its sole discretion may reject any return of Product not approved by Seller in accordance with this paragraph or otherwise not returned in accordance with Seller's then current-return policies.
9. Returns / Repairs. No material will be accepted
for return after 90 days from date of shipment.
To return merchandise, you must call Canada Powertrain for a Return Authorization number. Include your return the RGA number and a copy of your invoice or packing slip. We will not accept obsolete, discontinued, custom made or modified parts. A 15% restocking charge with a $25.00 minimum plus all freight charges will apply to all returns arising through no fault of Canada Powertrain..
10. Title / Risk of Loss / Delivery. Unless other
arrangements are made in writing, Seller anticipates
use of common carriers for transport of Products.
Unless specifically otherwise provided in Seller's
invoice, the carrier, and not Seller, will bill for freight
rates and other transportation charges. Such payments
are solely the responsibility of the Purchaser, to be
paid directly by the Purchaser to the carrier.
All Products shall be shipped F.O.B. Seller's location or designated shipping point and shall become the property of Purchaser upon delivery to the carrier. Purchaser shall assume all risk and
liability for loss, damage, or destruction, as well as the results of any use or misuse by third parties who may acquire or use the Products illicitly after the delivery to the carrier. Unless mutually agreed upon, shipping dates are approximate and are based upon prompt receipt of all necessary information. Seller reserves the right to ship items in a single or multiple
shipments.
11. Damage. Purchaser shall notify Seller and the
delivering carrier within five (5) business days
from date of receipt of Products, of any damage or
shortage, and afford Seller a reasonable opportunity to inspect the Products. Any loss occasioned by damage or shrinkage in transit will be for Purchaser's account and claims for such loss shall be made solely against the carrier.
12. Quantities. Quantities as ordered are to be shipped as requested with the exception of unit pack/multi pack variations that Canada Powertrain may vary to their discretion within reason and shall constitute compliance with Purchaser's Order and the stated price per item will continue to apply.
13. Warranty. Seller warrants that the Products or Services sold hereunder will conform to the manufacturer's specifications for the purpose in which it was designed and will be conveyed free and clear of any lien, security interest or encumbrance created by Seller or any party claiming by, through or under the Seller.
Seller shall have the right either to replace or repair
any defective products once assessed as a warranty situation, to refund the purchase price upon return of the products or to grant a reasonable allowance on account of such defects, and Seller's liability and Purchaser's exclusive remedy for defective products shall be limited solely to replacement, repair, refund or allowance as Seller may elect. Seller shall be given a reasonable opportunity to investigate all claims and no products shall be returned to Seller until after inspection and approval by Seller and receipt by Purchaser of authorization or an RGA.
14. Disclaimer of Further Warranties. Except as set forth above, Seller makes no warranty or
representation of any kind, express or implied
(including no warranty of merchantability or fitness
for any particular purpose) with respect to its Products or Services.
15. Limitation of Liability and Remedies. Seller
shall not be liable, and Purchaser waives all claims
against Seller, for incidental, special, punitive or
consequential damages, lost profits or commercial
losses, whether or not based upon Seller's negligence
or breach of warranty or strict liability in tort or any
other cause of action. Seller will not be liable to
Purchaser for any loss, damage, or injury to persons or property resulting from the handling, storage,
transportation, resale, or use of its products in
manufacturing processes, or in combination with other substances, or otherwise. In no event will Seller's liability under this agreement or in connection with the sale of products by Seller exceed the purchase price of the specific Products or Services as to which the claim is made.
16. Inventory. Except as provided in Sections 7 and
11 hereof, Seller will neither accept return of Product, nor be responsible for its destruction.
17. Technical Data. All physical properties,
statements and recommendations are either based on
the tests or experience that Seller believes to be reliable, but they are not guaranteed as they are the recommendations of the original equipment manufacturer.
18. Product Use. Purchaser is solely responsible for
determining whether any Product is fit for a particular purpose and suitable for Purchaser's method of application. Accordingly, and due to the nature and manner of use of Seller's Products, Seller is not responsible for the results or consequences of use, misuse or application of its Products by anyone.
19. Tooling / Molds / Dies. Unless otherwise agreed
in writing signed by Seller, all material, equipment,
facilities, and special tooling, (which term includes but is not limited to tools, jigs, dies, fixtures, molds,
patterns, special taps, special gauges, special test
equipment, and manufacturing aids and replacements
thereof), used in the manufacture of the Products
covered by any Purchase Order shall remain the
property of Seller.
20. Taxes. Purchaser shall pay to Seller, in addition to the purchase price, the amount of all fees, duties,
licenses, tariffs, and all sales, use, privilege, occupation, excise, or other taxes, federal, state, local
or foreign, which Seller is required to pay or collect in connection with the Products or Services sold to
Purchaser. Failure by the Seller to collect any such
fees or taxes shall not affect Purchaser's obligations
hereunder and Purchaser shall fully defend, indemnify and hold harmless Seller with respect to such tax obligations.
21. Ownership of Intellectual Property. All
drawings, know-how, designs, specifications,
inventions, devices, developments, processes,
copyrights and other information or Intellectual
Property disclosed or otherwise provided to Purchaser by Seller and all rights therein (collectively, "Intellectual Property") will remain the property of Seller and will be kept confidential by Purchaser in accordance with these terms and conditions. Purchaser shall have no claim to, nor ownership interest in, any Intellectual Property and such information, in whatever form and any copies thereof, shall be promptly returned to Seller upon written request from Seller. Purchaser acknowledges that no license or rights of any sort are granted to Purchaser hereunder in respect of any Intellectual Property.
22. Confidential Information. All information
furnished or made available by Seller to Purchaser in
connection with the subject matter of this Agreement
or of Purchaser's Purchase Order shall be held in
confidence by the Purchaser. Purchaser agrees not to
use such information or disclose such information to
others without Seller's prior written consent. The
obligations in this paragraph will not apply to any
information which (a) at the time of disclosure was or
thereafter becomes, generally available to the public
by publication or otherwise through no breach by the
Purchaser of any obligation herein, (b) the Purchaser
can show by written records was in the Purchaser's
possession prior to disclosure by Seller, or (c) is
legally made available to the Purchaser by or through
a third party having no direct or indirect confidentiality obligation to Seller with respect to such information.
23. Infringement and Indemnification. (a) Except
as set forth below, Seller agrees to defend, indemnify
and hold the Purchaser harmless against any claims,
costs, damages, liability and expenses resulting from
actual trademark, or copyright infringement,
misappropriation of confidential information, or
violation of any other Intellectual Property right,
domestic or foreign, that may arise from the sale of
Product that is owned by Seller and that pertains to the subject matter of this Agreement (provided that
Product is not modified in any way by the Purchaser or any other party, and that the Product is used in the
manner intended by Seller). If a suit or claim results
in any injunction or any other order that would prevent Seller from supplying any part or Product falling under this Agreement, or if the result of such a suit or claim would, in the reasonable opinion of Seller, otherwise cause Seller to be unable to supply such parts or Products, Seller shall have the right, at its option, if it so chooses, to do one or more of the following: (i) secure an appropriate license to permit Seller to continue supplying said parts or Products to Purchaser; (ii) modify the appropriate part or Product so that it becomes non-infringing; (iii) replace the appropriate part or Product with a non-infringing but practically equivalent part or Product; or (iv) if the Seller cannot reasonably accomplish the actions specified in subparagraphs (i) - (iii), then in Seller's sole discretion, Seller may discontinue selling the part or Product without any further liability to Purchaser. (b) Purchaser agrees to defend, indemnify and hold Seller harmless against any claims, costs, damages, liability and expenses resulting from actual or alleged patent, trademark, or copyright infringement, misappropriation of confidential information, or violation of any other Intellectual Property right, domestic or foreign, that may arise from the making, using or selling of any part or Product or using any process that is owned by the Purchaser or is designed or specified by the Purchaser and that pertains to the subject matter of this Agreement. (c) If any claim is made by a third party on the basis of which indemnification may be sought under this paragraph, the party entitled to indemnification (the "Indemnified Party") shall give written notice of such claim to the party liable for such indemnification (the "Indemnifying Party") promptly after the Indemnified Party has actual notice of such claim. The Indemnifying Party shall have the right to defend and/or settle such claim at its expense, provided that it does so diligently and in good faith. The Indemnified Party shall cooperate with such defense and/or settlement and shall have the right to participate in (but not to control) such defense and/or settlement at its expense. No settlement shall be entered into unless the Indemnified Party shall be released from all
liability for such claim.
24. Force Majeure. Seller shall not be liable for
failure to perform or delay in performance or delivery
of any Products or Services due to (a) fires, floods,
strikes, or other labor disputes, accidents, sabotage,
terrorism, war, riots, acts of precedence or priorities
granted at the request or for the benefit, directly or
indirectly, of any federal, state or local government or any subdivision or agency thereof, delays in
transportation or lack of transportation facilities,
restrictions imposed by federal, state or local laws,
rules or regulations; or (b) any other cause beyond the control of Seller. In the event of the occurrence of any of the foregoing, the time for performance shall be extended for such time as may be reasonably
necessary to enable Seller to perform. Seller may,
during any period of shortage due to any of the above
circumstances, allocate its available supply of
Products or Services among itself and its Purchasers in such manner as Seller, in its judgment, deems fair and equitable.
25. Assignment and Delegation. No assignment of any rights or interest or delegation of any obligation or duty of Purchaser under these terms and conditions ,Seller'squotation,Orderacknowledgement,or invoice,
or Purchaser's Purchase Order may be made without
the prior written consent of Seller. Any attempted
assignment or delegation will be wholly void and
totally ineffective for all purposes.
26. Integration Clause.
These terms and conditions, together with Seller's quotation, order acknowledgement and invoice to a Purchase Order accepted by Seller, constitute the entire contract of sale and purchase between Seller and Purchaser with respect to the Products covered by this Agreement, and supersedes any prior agreements, understandings, representations and quotations with respect thereto. No modification hereof shall be of any force or effect unless in writing and signed by the party claiming to be bound thereby.
27. Waiver. No failure of Seller to insist upon strict
compliance by Purchaser with these terms and
conditions or to exercise any right accruing from any
default of Purchaser shall impair Seller's rights in case Purchaser's default continues or in case of any
subsequent default by Purchaser. Waiver by Seller of
any breach by Purchaser of these terms and conditions shall not be construed as a waiver of any other existing or future breach.
28. Limitation of Actions. Notwithstanding any
contrary statute of limitations, any cause of action for
any alleged breach of these terms and conditions by
Seller shall be barred unless commenced by Purchaser within one (1) year from the accrual of such cause or action.
29. Litigation Costs. If any litigation or arbitration is
commenced between Seller and Purchaser concerning
any provision of this Agreement, the party prevailing
in the litigation or arbitration is entitled, in addition to such other relief that is granted, to a reasonable sum as and for their attorney's fees in such litigation or
arbitration, provided that if each party prevails in part, such fees shall be allocated in such manner as the court or arbitrator shall determine to be equitable in view of the relative merits and amounts of the parties' claims.
30. Choice of Laws. Any dispute arising out of or
related to this Agreement, shall be governed by and
construed according to the laws of the Province of Ontario and litigated exclusively in a provincial or federal court located in Ontario. The parties hereby
agree to the exclusive jurisdiction and venue of such
courts.
31. Jury Waiver. The parties hereto expressly release and waive any and all rights to a jury trial and consent to have any dispute heard solely by a Court of competent jurisdiction.
32. Severability. If any provision herein shall be held
to be unlawful or unenforceable, the remaining
provisions herein shall remain in full force and effect.