TERMS & CONDITIONS OF SALE

 

  1. AcceptancePurchaser’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 (these “Terms and Conditions”). Any changes to these terms and conditions must be in writing clearly identifying the change and signed by Seller. 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 ON PURCHASER’S WEBSITE, AND SUCH ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS SHALL BE VOID AND OF NO EFFECT UNLESS IN A WRITING SPECIFICALLY AGREED TO BY SELLER SPECIFICALLY REFERRING TO AND AGREEING TO THE CHANGE.
  2. Quotations. Quotations are valid, if in writing, for thirty (30) days from the date of the quotation unless otherwise set forth in Seller’s quote.
  3. Prices. Prices are in U.S. Dollars and are subject to change without notice.
  4. Terms of Payment. Unless otherwise expressly agreed to by Seller in Seller’s quotation, terms of payment are thirty (30) days net from the date of Seller’s invoice. In the event of Purchaser’s failure to pay Seller’s invoice(s) or of any late invoice payments by Purchaser, Seller reserves the right to take any or all of the following actions: (a) any actions allowable under law; (b) withhold shipment of goods; (e) cancel any purchase orders. In addition, Purchaser agrees to pay interest on overdue invoices at the rate of 1 ½ % per month, but not higher than the highest rate permitted by law. If Purchaser fails to make any payment as required, Purchaser agrees to indemnify Seller for all costs and expenses, including reasonable attorneys’ fees, court costs, and associated expenses incurred by Seller.  Any inspection rights granted to Purchaser will not affect or alter the payment terms or the timing of Purchaser’s payment obligations.  
  5. License Required.  Each sale of a Pultrucoater™ or other proprietary powder coating system sold by the Seller is subject to the Purchaser having first entered into a written license agreement with Pultrucoater Inc. (“PCI”): which allows the Purchaser to use PCI’s powder painting technology with approved powders; sets out license fees payable for such use (a “Purchaser License”); and establishes confidentiality and non-analysis/reverse engineering requirements.
  6. 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 canceled, 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. If Purchaser nonetheless repudiates the contract or notifies Seller to proceed no further therewith, Seller shall have the right to deliver all finished goods and goods in process, and Buyer agrees to accept same and to pay to Seller the contract price for all finished goods plus reimbursement, including lost profits, for unfinished goods.
  7. Title / Risk of Loss / Delivery.  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 plant and shall become the property of Purchaser upon delivery to the carrier and receipt of full payment by Seller. 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 single or multiple shipments.
  8. Damage. Purchaser shall notify Seller and the delivering carrier of any damage within fifteen (15) business days from date of receipt of Products.
  9. Warranty. SELLER WARRANTS ONLY THAT THE PRODUCTS OR SERVICES SOLD HEREUNDER: (A) WILL CONFORM TO THE DESCRIPTION, IF ANY, ON THE FACE HEREOF, (B) WILL BE CONVEYED FREE AND CLEAR OF ANY LIEN, SECURITY INTEREST OR ENCUMBRANCE CREATED BY SELLER OR ANY PARTY CLAIMING BY, THROUGH OR UNDER SELLER, AND (C) WILL BE FREE FROM SUBSTANTIAL DEFECTS IN MATERIAL AND WORKMANSHIP UNDER NORMAL USE GIVEN PROPER INSTALLATION AND MAINTENANCE FOR A PERIOD OF ONE (1) YEAR FROM THE DATE OF COMISSIONING. SELLER SHALL HAVE THE RIGHT AT SELLER’S DISCRETION TO EITHER TO REPLACE OR REPAIR ANY DEFECTIVE PRODUCTS, 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.
  10. 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 THESE TERMS AND CONDITIONS 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.
  11. 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, provincial/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.
  12. 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) fire, flood, strike, or other labor dispute, accident, sabotage, terrorism, war, riot, act of precedence or priority granted at the request or for the benefit, directly or indirectly, of any federal, state or local government or any subdivision or agency thereof, delay in transportation or lack of transportation facilities, restriction imposed by federal, state or local laws, rule or regulations; or (b) any other cause beyond the reasonable 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.
  13. 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’s quotation, order acknowledgement, 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.
  14. Integration Clause. These Terms and Conditions constitute the terms and conditions to the contract of sale and purchase between Seller and Purchaser with respect to the Products covered by these Terms and Conditions, 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.
  15. 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.
  16. Choice of Laws. Any dispute arising out of or related to these Terms and Conditions 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 Toronto, Ontario. The parties hereby agree to the exclusive jurisdiction and venue of such courts.
  17. Severability. If any provision herein shall be held to be unlawful or unenforceable, the remaining provisions herein shall remain in full force and effect.