General Terms and Conditions
Canadian Custom Metalworks (hereafter called "Seller") agrees to sell all of its right, title, and interest in and to the merchandise described on the front of this agreement (the “Agreement”) on the following terms and conditions of purchase by Buyer. Any alterations of Seller's terms and conditions of sale shall have no force or effect unless agreed to in writing by Seller.
THIS CONTRACT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN BUYER AND SELLER WITH RESPECT TO THE MERCHANDISE FURNISHED HEREUNDER. BUYER ACKNOWLEDGES THAT NO REPRESENTATION, PROMISE OR CONDITION NOT SET FORTH HEREIN HAS BEEN RELIED UPON IN MAKING ITS DETERMINATION TO PURCHASE.
The failure of either Buyer or Seller to enforce any rights under this contract of sale shall not constitute a waiver of such rights or any other rights under this contract of sale. In consideration of the mutual covenants and agreements herein contained, and other good and valuable consideration the receipt of which hereby acknowledged, the parties agree as follows:
1. ORDERS: Orders are subject to acceptance at the home office of Seller.
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2. PRICES AND DISCOUNTS: All prices and discounts are in accordance with the then-current established price and discount schedules of Seller, AND ARE SUBJECT TO CHANGE WITHOUT NOTICE. The price charged for the merchandise will be fixed as of the date the order for it is placed with Seller.
All prices are EXW Mississauga, Ontario. Buyer shall be charged for all shipping and handling.
Buyer shall place with Seller a MINIMUM ORDER of $100.00 (based on list prices) for each shipment of merchandise.
Subject to establishment of satisfactory credit, terms are strictly net cash thirty (30) days from date of invoice payable in Canadian funds. Any amount due but unpaid thirty (30) days after the invoice date shall be subject to an interest charge of 1-1/2% per month. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, legal fees on a full indemnity basis. In addition to all other remedies available under these terms and conditions or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any further delivery of merchandise if Buyer fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller's breach or otherwise.
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3. CREDIT CONDITIONS: If, at any time, the financial conditions of Buyer, or Buyer's prior performance under the terms of this or any other agreement with Seller shall-cause Seller to reasonably question Buyer's ability to perform, Seller may demand adequate assurance to Buyer's due performance. Such demand for assurance may require full payment of all amounts then due and owing by Buyer or may require partial or full advance payment of the purchase price of goods which have been scheduled for delivery, but shall not be limited to the foregoing. If Buyer fails within ten (10) days of Seller's demand to provide Seller with such assurance, Seller shall be entitled to cancel any order then outstanding, shall be entitled to receive reimbursement for the reasonable and proper cancellation charges (including without limitation any shipping charges), and may proceed to collect, without limitation, any sums due and owing, its reasonable cancellation charged and all damages resulting from Buyer's default, including, but not limited to, Seller's legal fees and costs, regardless of whether or not suit is actually filed and/or taken to judgement or settlement. In the event of bankruptcy or insolvency of Buyer, or in the event of any proceeding brought against Buyer, voluntarily or involuntarily, under the bankruptcy or any insolvency laws, Seller shall be entitled to cancel any order then outstanding at any time during the period allowed by filing claims against the Buyer (or its successor, assigns or beneficiaries) and shall receive therefrom reimbursement for its reasonable and proper cancellation charges.
Unless otherwise agreed in writing, all export sales are to be covered by an irrevocable confirmed letter of credit established in a Canadian bank, with such bank being acceptable to the Seller in its sole discretion.
4. FORCE MAJEURE: Seller shall not be liable or responsible to Buyer, nor in any way be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts beyond the Seller’s reasonable control, including but not limited to war, or restraints, affecting shipping, delivery of materials or credit as a result of war or war restrictions, non-arrival, delay or failure to produce materials as a result of war or war restrictions, rationing of fuel, strikes, lockouts, fires, bombings, accidents, floods, droughts, acts of God, government order, law or actions, national or regional emergencies, and any other similar events beyond the reasonable control of the Seller, its suppliers, or sub-contractors (“Force Majeure Event(s)”). Seller shall have the right upon the occurrence of a Force Majeure Event to cancel a contract of sale or to extend the shipping date by providing written notice to Buyer. Seller shall resume the performance of its obligations as soon as reasonably practicable after the removal of the Force Majeure Event. In the event that the Seller’s failure or delay remains uncured for a period of thirty (30) days following written notice given by it under this Section, the Seller may thereafter terminate this Agreement upon written notice to the Buyer. In the event of delayed or extended shipping dates due to the above Force Majeure Event(s), and Buyer changes shipping instructions, any additional shipping charges shall be paid by Buyer as a part of the purchase price.
5. WEIGHTS, DIMENSIONS AND DESIGNS: Shipping weights and dimensions given in Seller's catalogue are as close to actual as practicable but are not guaranteed. No claims will be allowed because of any discrepancy between actual weight or dimensions shipped and listed data. All designs and specifications shown in Seller's catalogue are subject to change without notice.
6. SHIPPING AND PACKING: All material is carefully packed for shipment and Seller will not be responsible for loss, delay, damage and/or breakage after having received "in good order" receipts form the transportation company. All claims for breakage, loss delay and damage should be made to carriers, but Seller will render Buyer reasonable assistance in securing satisfactory adjustment of such claims.
In the absence of directions by Buyer, goods will be shipped by the method and via carrier as determined by Seller in its sole discretion. Risk of loss transfers to the Buyer upon delivery by Seller to the carrier.
Goods held by seller beyond original invoice date for the convenience of the Buyer will be priced as of either the date of completion or the date of the original order, whichever date produces the higher price, and the terms of payment will apply as from the original order date. Such goods will be subject to reasonable charges for warehousing and other associated expenses incident to such delay in shipping.
7. CANCELLATION: An order is not subject to cancellation or change in specifications, shipping schedules or other conditions originally agreed upon without Seller's written consent (each, a “Change Order”). Seller shall be entitled to compensation for all losses caused by such cancellation or changes in a Change Order.
8. WARRANTY AND LIMITATION OF LIABILITY: Seller warrants to Buyer that the merchandise described on the front of this Agreement is warranted in the packaging and collateral in effect at the time of delivery of such merchandise to Buyer for one year (the “Warranty”). Seller's sole obligation and the sole remedy of Buyer under this Warranty shall be replacement of the merchandise returned to Seller as defective. No other remedy shall be available to Buyer or any other party with respect to breaches of this Warranty.
Except as set forth in this section, the SELLER MAKES NO CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO THE MERCHANDISE, INCLUDING ANY (a) CONDITION OR WARRANTY OF MERCHANTABILITY; (b) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) CONDITION OR WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS OR THE AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
FURTHER, IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE MERCHANDISE SOLD RELATING TO SUCH CLAIM.
Seller is not responsible for damages to its merchandise/products through improper installation, maintenance, use, repairs or adjustments or attempts to operate it above its rated capacity or voltage, intentionally or otherwise, or for unauthorized repairs.
9. RETURNS FOR REPAIR: When merchandise is returned for repairs due to causes not covered by Seller's Warranty, Buyer shall notify Seller in writing and, after receipt of shipping advice, Buyer may return it to Seller, carrying charges prepaid. If possible, Seller's Service Department will put such merchandise in operating condition at the lowest reasonably possible cost. When necessary to make a return, Buyer shall give all possible information regarding the trouble experienced and complete details of the installation with which the device was used.
10. NOTICE OF CLAIMS BY BUYER: Seller shall have no liability on any claim by buyer with respect to any product furnished hereunder alleged to be not in conformity with the terms and conditions hereof or with any warranty expressed in these terms and conditions unless written notice specifying such claim shall have been sent by Buyer to Seller within three (3) days after such date as Buyer can establish as the earliest date on which the basis for such claim could have been discovered by Buyer with reasonable diligence within one year from the date of shipment. Except as stated in the preceding sentence, Seller shall not be liable to Buyer for any claim under this contract of which it does not receive written notice, or from the occurrence, if related to other than the condition of the product(s). Notwithstanding any other provision to the contrary herein, failure to so notify Seller shall constitute a waiver of any and all claims hereunder.
11. LIMITATIONS UPON REMEDIES OF BUYER AND OTHERS: In the event of any merchandise/product furnished hereunder is found to be not in conformity with the terms and conditions hereof or with any warranty expressed in these terms and conditions, THE REMEDIES OF THE BUYER AND ALL OTHERS CLAIMING UNDER, WITH OR THROUGH THE BUYER ARE EXPRESSLY LIMITED TO THE FOLLOWING:
a. Seller will, at its option, either (1) repair or replace such product at the delivery point specified herein, or (2) repay the contract price herein of such merchandise/product upon its return by Buyer to said delivery point, plus any transportation charges paid by Buyer in addition to such price.
b. Except as expressly provided otherwise herein, the limit of Seller's liability with respect to any product(s) furnished hereunder, whether in contract, in tort, under any warranty, or otherwise, shall be the contract price herein of the specific merchandise/product on which such liability is based.
c. Seller shall not be liable for special or consequential damages in any claim, action, suit or proceeding arising under this transaction, nor shall there by any liability thereunder for claims for labour, loss or profits or goodwill, repairs or other expenses incidental to replacement.
12. OWNERSHIP AND OTHER RIGHTS: Buyer has no title to or interest in the merchandise except as otherwise expressly provided on this Agreement. Seller has and shall retain sole and exclusive title to and ownership of the merchandise until completely paid for by Buyer. In no event shall Buyer acquire any trade secrets, copyrights, patents or rights to patent, trademarks or any other such intellectual property or proprietary rights embodied in the merchandise.
13. BOND PREMIUMS: In the event Seller shall be required as a condition of the manufacture and sale of equipment to furnish a performance bond, Buyer shall pay as part of the purchase price of said equipment all bond premiums and expense in connection therewith.
14. COMPLIANCE WITH LAWS: Seller shall comply with all applicable Federal, Provincial and local laws and regulations in connection with the manufacture and sale of all equipment. No responsibility or liability will be taken for import duties, laws, regulations or taxed-imposed by any foreign country.
15. TAXES: Any manufacturer's excise tax, sue tax, sales tax, or tax or duty of any nature whatsoever arising out of or assessed against orders or otherwise arising or relating to this Agreement, shall be added to the prices quoted or invoiced and shall be paid by Buyer; and in the event Seller is required to pay any such taxes or duties, Buyer shall promptly reimburse Seller therefor, unless Buyer shall provide Seller at the time an order is submitted with exemption certificates or other documents acceptable to taxing or custom authorities. Notwithstanding the foregoing, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personnel or real or personal property or other assets.
16. APPLICABLE LAW: This Agreement shall be construed, interpreted and enforced in accordance with laws of the Province of Ontario and as though both parties were responsible for its drafting and preparation.
17. CHOICE OF FORUM: Any legal suit, action, litigation or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, shall be instituted in the courts of the Province of Ontario, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, litigation or other proceeding brought in any such court. Each party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
18. ENTIRE AGREEMENT: This Agreement constitutes and represents the entire integrated agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous agreements, written or oral, regarding such subject matter. This Agreement shall not be modified unless such modification is in writing and signed by authorized representatives of both parties.
19. WAIVER ACKNOWLEDGMENT: It is acknowledged by the Buyer that Seller shall in no way be deemed or held to be obligated, liable, or accountable upon or under any claims guarantees, warranties, express or implied, statutory, by operation of law or otherwise in any manner or form beyond its express agreements hereto.
20. ASSIGNMENT: Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
21. NO THIRD-PARTY BENEFICIARIES: This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these terms and conditions and Agreement.
22. SEVERABILITY: If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
