Standard Terms and Conditions of Sale
1. TERMS APPLICABLE
These terms and conditions are applicable to quotations and govern the sale of Products (“Products”) and the provision of services (“Services”) by PQI Canada Limited and its divisions, subsidiaries and affiliates (“Seller”) as well as by third party vendors and/or service providers of Seller. These terms and conditions (“Agreement”) take precedence over Buyer’s supplemental or conflicting terms and conditions to which notice of objection is hereby given. Acceptance by Buyer is limited to and conditioned upon Buyer’s assent to these terms and conditions. Neither Seller’s commencement of performance or delivery shall be deemed or constituted as acceptance of Buyer’s supplemental or conflicting terms and conditions. Buyer’s acceptance of the Products and/or Services from Seller shall be deemed to constitute acceptance of the terms and conditions contained herein. THESE TERMS AND CONDITIONS MAY ONLY BE WAIVED OR MODIFIED IN A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER. This Agreement (together with any agreements, policies or terms incorporated by reference) shall constitute the complete, final and exclusive statement of the terms of the Agreement between the parties with respect to the subject matter of this Agreement and the transactions between the parties and shall not be modified or rescinded, except by a writing signed by Seller and Buyer. The provisions of this Agreement supersede all prior oral and written quotations, communications, agreements, and understandings of the parties with respect to the subject matter of this Agreement. Products furnished and services rendered by Seller are done so only in accordance with these terms and conditions. If any provision of this Agreement are found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these terms and conditions, which shall remain in full force and effect. No course of dealing or failure of either party to strictly enforce any term, right or condition of this Agreement shall be construed as a waiver of that term, right or condition nor shall Seller’s acceptance of a purchase order be deemed as an acceptance of any terms and conditions therein.
(a) The prices of the Products are those specified on the front of Seller’s invoice. Pricing for undelivered Product may be increased in the event of any increase in Seller’s cost, change in market conditions or any other causes beyond Seller’s reasonable control. Price quotations, unless otherwise stated, shall automatically expire thirty (30) calendar days from the date issued and may be cancelled or amended within that period upon notice to Buyer.
(b) Unless otherwise agreed to in writing by Seller, all prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including, but not limited to, federal, state, provincial and local sales, excise, value added, goods and services taxes and any other taxes. Buyer agrees to pay these taxes unless Buyer has provided Seller with an exemption resale certificate in the appropriate form for the jurisdiction of Buyer’s place of business and any jurisdiction to which Products are to be directly shipped hereunder, or unless the sale is otherwise exempt from these taxes. Buyer agrees to indemnify and hold Seller harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation and taxes shall appear as separate items on Seller’s invoice.
(a) Full payment is due promptly upon placing an order. For all other orders, upon approval of credit, corporate standard terms of payment are net thirty (30) days from the date of invoice unless otherwise specified in writing by Seller. In addition, Buyer will be deemed to have accepted an invoice upon the fifteenth (15th) day from the date of invoice and no further objections to the invoice will be permitted or accepted. If Seller otherwise specifies in writing payment terms longer than thirty (30) days from the date of invoice, then: (i) the invoice will be deemed accepted upon the thirty (30th) day from the date of invoice and no further objections will be permitted or accepted; and (ii) Buyer must certify within thirty (30) days from the date of invoice that payment has been submitted for processing. Seller may invoice each shipment separately and each shipment shall be considered a separate and individual contract. Buyer agrees to pay such invoice pursuant to its terms without the benefit of setoff or deduction.
(b) All late payments shall be charged interest computed on a daily basis from the due date until paid in full. A late charge of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, will be imposed on all past due accounts. Buyer shall be liable for costs of collection, including reasonable attorneys’ fees and court costs, in any action to collect past due amounts.
(c) Transportation charges from Seller’s facility to Buyer’s facility shall be paid by Buyer to Seller, in addition to the purchase price of the Product, unless otherwise agreed to in writing by Seller. Seller will select the carrier in the absence of specific instructions by Buyer.
(d) Seller reserves the right to establish and/or change credit and payment terms extended to Buyer when, in Seller’s sole opinion, Buyer’s financial condition or previous payment record warrants such action. Further, on delinquent accounts, Seller shall not be obligated to continue performance under any agreement with Buyer.
(e) If Seller believes in good faith that Buyer’s ability to make payments may be impaired or if Buyer fails to pay any invoice when due, Seller may suspend delivery of any order or any remaining balance thereof until such payment is made or cancel any order or any remaining balance thereof, and Buyer shall remain liable to pay for any Products already shipped and all non-cancelable, non-returnable (“NCNR”) or customer specific (“CS”) Products ordered by Buyer.
(f) Seller retains a purchase money security interest in the Products delivered to Buyer, and in their accessories, replacements, accessions, proceeds and Products, including accounts receivable (collectively, the “Collateral”) to secure payment of all amounts due under this Agreement. Buyer’s failure to pay all amounts hereunder in full when and as due shall constitute a default hereof and shall give Seller all rights of a secured party. If Buyer fails to pay any amount when due, Seller shall have the right to repossess and remove all or any part of the Collateral from Buyer, but not from Buyer’s Customers. Any repossession or removal shall be without prejudice to any other remedy of Seller hereunder, at law or in equity. Buyer agrees, from time to time, to take any act and execute and deliver any document (including, without limitation, financing statements) reasonably requested by Seller to transfer, create, perfect, preserve, protect and enforce this security interest.
(g) Any payment received from Buyer may be applied by Seller against any obligation owing from Buyer to Seller, regardless of any statement appearing on or referring to such payment, without discharging Buyer’s liability for any additional amounts owing from Buyer to Seller, and the acceptance by Seller of such payment shall not constitute a waiver of Seller’s right to pursue the collection of any remaining balance.
(h) Buyer nor any of its affiliates shall have any right to set off claims against Seller or any of its affiliates for amounts owed under this Agreement or otherwise.
(i) Seller’s prices do not include any Goods and Service Tax or any sales, use, excise or other taxes. In addition to the price specified herein, the amount of any present or future sales, use, excise or other tax applicable to the sale or use of the Products shall be billed to and paid by Buyer unless Buyer provides to Seller a tax-exemption certificate acceptable to the relevant taxing authorities.
(a) Seller reserves the right of stoppage in transit and delivery of Products as a result of Buyer’s failure to promptly: make advance or interim payments; supply drawings and technical information necessary for processing purchase orders; and provide written confirmation of purchase orders upon request of Seller. The Seller’s right of stoppage will result in a delay in delivery without subjecting Seller to any liability or penalty. Buyer, its successors and/or assignees expressly releases Seller from any and all liability, claims or actions arising out of any transaction or occurrence stemming from Sellers right of stoppage or any other cause of delay for delivery of Products.
(b) All deliveries will be made EXW Seller’s facility Incoterms 2000, FOB place of origin Incoterms 2000, or FCA place of origin Incoterms 2000, as applicable. Subject to Seller’s right of stoppage in transit, delivery of the Products to the carrier shall constitute delivery to Buyer and title and risk of loss shall thereupon pass to Buyer. Selection of the carrier and delivery route shall be made by Seller unless specified by Buyer. Buyer acknowledges that delivery dates provided by Seller are estimates only and Seller shall not be liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of Seller nor shall the carrier be deemed an agent of Seller. In the event of delay caused by such event, the date of delivery shall be extended for a period equal to the time lost as a consequence of the delay in delivery without subjecting Seller to any liability or penalty. Delivery dates are good faith estimates and do not mean that “time is of the essence”. If the Products perished while in the custody of the carrier, the Seller shall be deemed to have performed its obligations in full. Delivery of a quantity, which varies from the quantity specified, shall not relieve Buyer of the obligation to accept delivery and pay for the Products delivered. Delay in delivery of one installment shall not entitle Buyer to cancel other installments.
(c) Seller shall not be liable for any loss or delay due to, acts of governmental authority, laws or regulations, strikes, fires, floods, earthquakes, severe weather, epidemics, quarantine restrictions, war, piracy, hijacking, riot, acts of Buyer, wrecks, delays in transportation, inability to obtain necessary labor or materials from usual sources, or other causes beyond the reasonable control of Seller. In the event of any delays in performance due to such causes, the date of delivery or performance shall be deferred for a period equal to the time lost by the reason of the delay.
Shipments will be deemed to have been accepted by Buyer upon delivery of the Product or when the Product is made available for pick up by the Buyer at Seller’s premises or another location that has been designated by the Seller. In the event of an over shipment, Buyer shall have the option to return the Products to Seller at Seller’s expense or alternatively, Buyer may elect to retain the Products (subject to adjustment of the invoice or the issuance of another invoice to account for such additional items.) Any Product returns shall be subject to compliance with Seller’s Return Merchandise Authorization (“RMA”) policies and procedures as well as a restocking charge equivalent to 50% of the value of such Product as specified in Seller’s invoice to Buyer. Returned Products must be in the original packaging and conform to minimum package quantity (“MPQ”) requirements. Products not eligible for return shall be returned to Buyer freight collect. Products designated NCNR or CR are not eligible for return.
Buyer may only cancel its order upon written notice to Seller and upon payment to Seller of Seller’s cancellation charges, which shall be specified to Buyer and shall take into account among other things expenses (direct and indirect) incurred and commitments already made by Seller and an appropriate profit. In the event of the bankruptcy or insolvency of Buyer or in the event of any bankruptcy or insolvency proceeding brought by or against Buyer, Seller shall be entitled to cancel any order outstanding at any time during the period allowed for filing claims against the estate and shall receive reimbursement for its cancellation charges. Seller reserves the right to cancel any order at any time. Seller reserves the exclusive right to cancel any order at any time.
Seller will not make changes in the Products unless Buyer and Seller have executed a written Change Order for such change. Such Change Order will include an appropriate price adjustment. If the change impairs Seller’s ability to satisfy any of its obligations to Buyer, the Change Order will include appropriate modifications to this Agreement. If after the date of this quotation or acknowledgment, new or revised governmental requirements should require a change in the Products, the change will be subject to this paragraph 9.
8. LIMITED WARRANTY AND LIMITATION OF LIABILITY
(a) Seller will transfer to Buyer any transferable warranties or indemnities that the manufacturer of the Products or the third party vendor/service provider provides to Seller, if such warranty is transferable. If such warranty is not transferable to Buyer, then Seller shall warrant the Products against defects in material and workmanship for a term of 12 months from delivery thereof (“Seller’s Limited Warranty”). If during the Seller’s Limited Warranty period Buyer discovers a defect in material or workmanship and gives Seller written notice thereof within 10 days of such discovery, Seller will, at its option, either deliver to Buyer, in accordance with section 2 herein, a replacement part or repair the defect in place. Seller’s failure to give written notice of a defect in material or workmanship within the 10 day discovery period shall void Seller’s Limited Warranty as against the alleged defect. SELLER SHALL HAVE NO LIABILITY TOWARDS BUYER WITH REGARD TO ANY WARRANTY. BEYOND THE EXPRESS TERMS OF SELLER’S LIMITED WARRANTY AS LIMITED HEREIN. SELLER ASSUMES NO LIABILITY FOR THE QUALITY OF THE WORK PERFORMED OR SERVICES RENDERED BY THIRD PARTY VENDORS AND/OR SERVICE PROVIDERS. IT IS BUYER’S OBLIGATION TO REQUEST COPIES OF ANY APPLICABLE MANUFACTURER WARRANTIES, PRODUCT SPECIFICATIONS AND QUALITY CONTROL GUARANTEES, AND BUYER SHALL BE DEEMED TO HAVE ACCEPTED SUCH WARRANTIES, PRODUCT SPECIFICATIONS AND QUALITY CONTROL GUARANTEES UPON ACCEPTANCE OF THE PRODUCTS AND/OR SERVICES.
(b) Seller’s exclusive obligations with respect to a non-conforming Product or Service shall be, at Seller’s option, to repair or replace the Product, if it is determined to be defective, or to re-perform the Service, or to refund to Buyer the purchase price paid for the Product or Service. Notwithstanding anything herein to the contrary, the liability of Seller under this Section 3(b) for all claims shall not exceed the sum of Buyer’s payments for the Products or Services which are the subject of the dispute and the foregoing is Buyer’s sole and exclusive remedy for all claims under this Section 8(b). THE FOREGOING WARRANTIES ARE THE SOLE WARRANTIES, EXPRESS OR IMPLIED, GIVEN BY SELLER IN CONNECTION WITH THE PRODUCTS AND SERVICES, AND SELLER DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS.
(c) Replacement Products shall be warranted as set forth in Section 8(a) above. Any Products repaired or serviced by Seller shall be warranted as provided in this Section 3(b) for the remainder of the manufacturer’s warranty period.
(d) No warranty shall apply to any Product: (1) that has been subject to modification, misuse, excessive use, improper testing, improper assembly, mishandling, improper or lack of maintenance, operation or maintenance that is not in accordance with generally approved industry standards and Product instructions; (2) that has been used in combination with any fluid or substance or operating condition other than that for which the Product was designed for; (3) has been used in a manner that is contrary to operating instructions and/or industry standards relating to acceptable usage; (4) that has been repaired by anyone other than Seller; (5) that has been intentionally or accidentally damaged or destroyed; and (6) that fails as a result of corrosion, erosion, water damage, severe weather conditions, freezing, extreme heat, or in respect of any Products and parts thereto which by their nature are subject to wear and tear that will require periodic inspection and/or replacement as a consequence of usage and/or time.
(e) Seller disclaims, and shall have no liability for any trademark, trade dress, trade secret, copyright, design or patent infringement, or any other intellectual property right, which may occur, as a result of the sale of Products to Buyer. The only remedy or recourse for trademark, trade dress, trade secret, copyright, design or patent infringement, or any other intellectual property right, shall be against the manufacturer of the Products which is explicitly subject to the limited warranty of the manufacturer of the Product. There shall be no remedy or recourse against Seller or the manufacturer to the extent the infringement arises from or is otherwise based upon (i) the manufacturer’s compliance with the particular requirements of Buyer that differ from the manufacturer’s standard specifications for the Product; (ii) modifications or alterations of the product other than by the manufacturer; or (iii) a combination of the Product with other items not furnished or manufactured by the manufacturer.
(f) BUYER SHALL NOT IN ANY EVENT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION COSTS, REMOVAL AND/OR REINSTALLATION COSTS, REPROCUREMENT COSTS, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO REPUTATION OR LOSS OF CUSTOMERS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER’S RECOVERY FROM SELLER FOR ANY CLAIM SHALL NOT EXCEED BUYER’S PURCHASE PRICE FOR THE PRODUCT GIVING RISE TO SUCH CLAIM IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. SELLER SHALL NOT BE LIABLE FOR AND BUYER SHALL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ANY CLAIMS BASED ON SELLER’S COMPLIANCE WITH BUYER’S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS, OR MODIFICATION OF ANY PRODUCTS BY PARTIES OTHER THAN SELLER, OR USE IN COMBINATION WITH OTHER PRODUCTS. IF, FOR ANY REASON, THE FOREGOING LIMITATIONS ARE FOUND BY AN ARBITRATION PANEL OR COURT OF COMPETENT JURISDICTION TO BE INVALID OR INAPPLICABLE UNDER ANY APPLICABLE STATE OR PROVINCIAL LAW, BUYER AGREES THAT SELLER’S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION OF ANY KIND OR NATURE SHALL BE LIMITED TO ACTUAL DAMAGES WITHOUT REGARD TO ANY PUNITIVE OR EXEMPLARY DAMAGES PROVIDED BY ANY SUCH APPLICABLE LAW.
(g) Buyer acknowledges that this Agreement was entered into at arms length and that it was not fraudulently induced to enter into this Agreement, in whole or any part, and Buyer explicitly disclaims and waives any claim with respect thereto.
(h) The remedies provided in paragraphs 8(a) to 3(g) are Buyer’s exclusive remedy for breach of warranty.
9. LIMITATION OF LIABILITY
THE REMEDIES OF BUYER SET FORTH HEREIN ARE EXCLUSIVE AND THE AGGREGATE LIABILITY OF SELLER FOR ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE RESULTING FROM, ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT OR FROM THE PERFORMANCE OR BREACH THEREOF, OR FROM THE MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR OR USE OF ANY PRODUCT, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), FAULT, STRICT LIABILITY, INDEMNITY, OR OTHERWISE, SHALL IN NO EVENT EXCEED THE PRICE ALLOCABLE TO PRODUCT WHICH GAVE RISE TO THE CLAIM. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY PARTY FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE OR BUSINESS OPPORTUNITY, LOSS BY REASON OF SHUTDOWN OF FACILITIES OR INABILITY TO OPERATE ANY FACILITY AT FULL CAPACITY, OR COST OF OBTAINING REPLACEMENT POWER. THE PROVISIONS OF THIS PARAGRAPH 9 SHALL SUPERSEDE ANY INCONSISTENT PROVISIONS IN ANY INSTRUMENT FORMING PART OF THIS AGREEMENT.
Buyer acknowledges that the information which Seller submits to Buyer in connection with this quotation or acknowledgment includes Seller’s confidential and proprietary information, both of a technical and commercial nature. Buyer agrees not to disclose such information to third parties without Seller’s prior written consent. Buyer further agrees not to permit any third party to fabricate the Products or any parts thereof from Seller’s drawings. Buyer will defend and indemnify Seller from any claim, suit, or liability based on personal injury (including death) or property damage related to any Product or part thereof which is fabricated by a third party without Seller’s prior written consent and from and against related costs, charges and expenses (including attorneys fees). All copies of Seller’s drawings shall remain Seller’s property and may be reclaimed by Seller at any time.
11. INTELLECTUAL PROPERTY
If any Product includes software, drawings or other intellectual property, such software, drawings or other intellectual property is provided by Seller to Buyer subject to the copyright and user license, if any, for such Products, the terms and conditions of which are set forth in the license agreement accompanying such software, drawings or other intellectual property. Nothing herein shall be construed to grant any rights or license to use any software, drawings or other intellectual property in any manner or for any purpose not expressly permitted by such license agreement. Buyer acknowledges and understands that Seller may not be the manufacturer of any Products ordered or to be supplied to Buyer and is not liable to Buyer or any third party for any copyright, design or patent issue, right or claim that may arise in relation to any Product.
12. TECHNICAL ASSISTANCE OR ADVICE
Any technical assistance or advice offered by Seller in regard to the use of any Product or provided in connection with Buyer’s purchases is given free of charge and only as an accommodation to Buyer. Seller shall have no obligation to provide any technical assistance or advice to Buyer and if any such assistance or advice is provided, such fact will not obligate Seller to provide any further or additional assistance or advice. Seller shall not be held liable for the content or Buyer’s use of such technical assistance or advice nor shall any statement made by any of Seller’s representatives in connection with the Products or Services constitute a representation or warranty, express or implied.