STANDARD TERMS AND CONDITIONS OF SALE ("Terms")
The following Terms shall apply to any purchase of goods specified in the invoice (the “Deliverables”) by Spaenaur Inc. (“Supplier”), and their acceptance is an express condition of such purchase. The purchaser of the Deliverables shown on the invoice (“Purchaser”) shall be deemed to have full knowledge of the Terms and such Terms shall be binding on the Purchaser if the Deliverables are delivered to Purchaser.
1. GOVERNING TERMS – These Terms together with the invoice (“Invoice”) issued by the Supplier and all Supplier’s documentation referenced in therein shall constitute the contract between Purchaser and Supplier (the “Contract”). Product specifications listed in any documentation of the Supplier are subject to change without notice and pictures shown therein may not be exact. In the event of any conflict or inconsistency between the Terms herein and the terms and conditions contained in any purchase order or in any other form issued by Purchaser, whether or not any such form has been acknowledged or accepted by Supplier, the Terms herein shall prevail. No waiver, alteration or modification of the Terms shall be binding upon Supplier unless made in writing and signed by an authorized signing officer of the Supplier.
2. MINIMUM INVOICE – The Supplier shall be entitled to enforce a minimum single Invoice amount.
3. ORDER QUANTITIES – Purchaser has the option of ordering in the “Standard Package Quantities” as shown on the Supplier’s price list or in “Bulk Packaging”. Purchaser shall specify “PACKAGES” on its purchase order to receive Standard Package Quantities. Otherwise, Supplier shall be entitled to ship in Bulk when practical.
4. PRICES – Refer to Supplier’s price list for current pricing. Prices are subject to change without notice. Prices herein specified shall, unless otherwise expressly stated, be fixed in Canadian dollars exclusive of all duties of any kind and all packaging, loading, shipping, and federal or provincial taxes (GST/PST/HST) which shall be shown as separate line items on the Invoice.
5. PAYMENT – Invoices of Purchasers with established accounts shall be paid within 30 days from receipt by Purchaser of the Deliverables and an Invoice from the Supplier. All other Purchasers shall make payment by cheque or major credit card when their purchase order is made and prior to delivery. No C.O.D. shipments. The Supplier shall be entitled to apply interest at a rate of 1.5% per month (18% per annum) to overdue Purchaser balances. Supplier may further hold Purchaser orders if they have overdue amounts outstanding.
6. SHIPPING – Unless otherwise stated on the face of the sales order (the “Order”), all Deliverables shall be delivered EXW (Incoterms 2010 as published by the International Chamber of Commerce, publication number 720E, ISBN 978-92-842-0082-5) Supplier’s warehouse in one of the following ways: freight collect or prepaid and charged on the Invoice. Title shall pass to Purchaser upon pickup by the chosen carrier. Loss or damage to Deliverables during shipment is the carrier’s responsibility. If a package is received damaged, Purchaser shall note this on the carrier’s delivery slip and contact the carrier for instructions regarding a claim. In the case of shipping errors or shortages, Purchaser shall contact Supplier within 10 (ten) days of receipt of the Deliverables. Supplier will automatically ship the balance of an Order when available. However, if the balance owing is less than $5.00, it may automatically be cancelled by the Supplier at its discretion. If this is not satisfactory to Purchaser, Purchaser shall contact Supplier to re-order the cancelled Deliverables.
7. SAME DAY SHIPPING – Supplier will use best efforts to process purchase orders for in stock items received by 3 pm EST/EDT or 2 (two) hours prior to the selected courier cut-off time, whichever comes first, (a “Qualifying Order”) available for same day shipment on selected couriers. If Supplier fails to ship a Qualifying Order the day it is received, Supplier shall ship the Qualified Order the next business day.
8. CANCELLATION AND CHANGES – If Purchaser cancels a purchase order, the Supplier shall be entitled to require the Purchaser to accept delivery of and be liable for all Deliverables processed prior to receipt of notice of cancellation. If Purchaser changes a purchase order, the Supplier shall be entitled to refuse the changes and to require the Purchaser to accept delivery of and be liable for all Deliverables processed prior to receipt of notice of change. Special orders or products specifically modified or sourced for Purchaser may not be cancelled or changed. This includes items procured in large quantities.
9. RETURNS – Surplus Deliverables and Deliverables ordered in error may be returned to Supplier for credit up to 90 days from the Invoice date. Purchaser shall contact Supplier for a return authorization. Supplier will not accept any returned goods unless such returns are authorized in writing in advance. Return authorizations shall be valid for 30 days. Only Deliverables that are undamaged may be returned. Items not in their original packaging may be subject to an additional 20% (minimum $25.00) repackaging charge. A 20% (minimum $25.00) restocking charge may apply. Applicable repackaging and restocking charges will become immediately due and payable by the Purchaser.
10. WARRANTIES – Supplier warrants that the Deliverables will be of merchantable quality at the time of shipment. SUPPLIER MUST BE GIVEN WRITTEN NOTICE IDENTIFYING THE DEFECTIVE GOODS AND SPECIFYING THE DEFECT WITHIN NINETY (90) DAYS AFTER RECEIPT OF THE GOODS BY PURCHASER. SUPPLIER MUST ALSO BE GIVEN THE OPPORTUNITY TO INSPECT THE ALLEGEDLY DEFECTIVE GOODS, AND IF REQUESTED BY SUPPLIER, THE ALLEGEDLY DEFECTIVE GOODS MUST BE RETURNED TO SUPPLIER AT THE PURCHASER’S OWN EXPENSE. FAILURE TO GIVE REQUIRED NOTICE WITHIN THE TIME PROVIDED, OR FAILURE TO RETURN ALLEGEDLY DEFECTIVE GOODS TO SUPPLIER FOLLOWING SUPPLIER’S REQUEST CONSTITUTES A WAIVER OF ALL CLAIMS AGAINST SUPPLIER. SUPPLIER’S LIABILITY HEREUNDER, AND PURCHASER’S EXCLUSIVE REMEDIES HEREUNDER, EITHER IN CONTRACT OR IN TORT OR PURSUANT TO STATUTE, FOR BREACH OF WARRANTY OR FOR NEGLIGENCE, ARE EXPRESSLY LIMITED TO REPLACEMENT OF DEFECTIVE GOODS OR, AT THE SOLE DISCRETION OF THE SUPPLIER, THE REFUND OF THE PURCHASE PRICE OF THE DEFECTIVE GOODS. EXCEPT AS EXPRESSLY PROVIDED IN THIS STANDARD WARRANTY POLICY STATEMENT, SUPPLIER HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, CONDITIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BY WAY OF EXAMPLE AND NOT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
11. LIMITATION OF LIABILITY – NOTWITHSTANDING ANY OTHER PROVISION HEREIN OR ANY APPLICABLE STATUTORY PROVISIONS, SUPPLIER SHALL NOT BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING LOSS OF PROFITS, WHETHER ARISING DIRECTLY OR INDIRECTLY FROM ANY BREACH OF THIS CONTRACT OR FROM ANY ACTIONS OR OMISSIONS OF ITS OFFICERS, EMPLOYEES OR AGENTS WHICH MAY GIVE RISE TO ANY LIABILITY (WHETHER IN TORT, INCLUDING FOR NEGLIGENCE, STRICT LIABILITY OR UNDER ANY OTHER THEORY OF LEGAL LIABILITY). IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SUPPLIER EXCEED THE PURCHASE PRICE SET OUT ON THE INVOICE.
12. INDEMNITY – Purchaser shall indemnify, defend and hold harmless Supplier, its affiliates and their respective directors, officers, employees, agents, consultants and subcontractors from and against any and all expenses, costs claims, losses, actions, lawyer’s fees, damages, duties, taxes, penalties or liabilities, including without limitation direct, indirect and consequential damages related to claims or actions arising from personal injury (including injuries resulting in death) or loss of or damage to property of others, or any amounts incurred by or which may become payable by Supplier arising directly or indirectly (i) out of any breach by Purchaser of the Terms; (ii) out of Purchaser’s use of the Deliverables; or (iii) for which Purchaser is at law responsible.
13. FORCE MAJEURE – With the exception of monies payable pursuant to the Invoice, neither party shall be liable for any delay or failure of performance due solely to causes beyond its control without its fault or negligence including without limitation acts of God, strikes, fires, war, riot, flood, provided that the party whose performance is effected has given notice in writing to the other party of any such cause for delay or anticipated delay promptly after first obtaining notice thereof and has used its best efforts to make deliveries as expeditiously as possible taking such cause for delay into account.
14. TERMINATION – If Purchaser ceases to conduct its operations in the normal course of business, or if any proceeding under the bankruptcy or insolvency laws is brought by or against Purchaser, or a receiver for Purchaser is appointed or applied for, or an assignment for the benefit of creditors is made by Purchaser, or it has not, to the satisfaction of Supplier, complied with any of the provisions herein, Supplier may, by giving written notice, terminate this Contract without liability. Purchaser shall remain liable for Deliverables previously delivered in accordance with the Contract.
15. NO LICENCE – Supplier reserves all rights to its intellectual property, including without limitation its trade names, trademarks, service marks, corporate logos, and material subject to its copyright (collectively, the “Supplier Content”). Nothing herein grants Purchaser any right or licence to use Supplier Content for any purpose. Purchaser acknowledges and agrees that Supplier Content and all right, title and interest therein, is and shall remain the exclusive property of Supplier.
16. MISCELLANEOUS – All notices given hereunder shall be in writing and may be sent by registered mail, courier, email or facsimile transmission, and addressed to the receiving party at the address set out in the Invoice or as subsequently agreed between the parties. Notices shall be deemed to be given when received by the other party. The parties herein are two independent entities. Supplier is engaged as an independent contractor solely for the purpose of providing the Deliverables. No assignment of this Contract shall be made by Purchaser without prior written consent of Supplier. Supplier in its sole discretion may assign its rights hereunder to its affiliates or to third party suppliers. Paragraphs intended to survive by their terms shall survive termination and expiration of this Contract. The parties hereby agree that the International Sale of Goods Act (Ontario) will not apply to Deliverables or this purchase. Failure or delay by either party in enforcing any right or provision hereof shall not be deemed a waiver of such provision or right. A determination that any provision herein may be unenforceable or invalid shall not affect the enforceability or validity of the remaining provisions hereof. This Contract shall be governed by, construed and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. The parties attorn to the exclusive jurisdiction of the courts situated in the province of Ontario.