Taymer’s Terms and Conditions, Sales Policy and Return Policy
These terms and conditions govern the sale of all products and services (“products”) by Taymer International Inc., its divisions, and subsidiaries (“seller”) and apply notwithstanding any conflicting, contrary, or additional terms and conditions in any purchase order or other document or communication (“purchase order”) from the buyer. Submission by the buyer to the seller of an order shall constitute the buyer’s acceptance of these terms and conditions. These terms and conditions may only be waived or modified in a written agreement signed by an authorized representative of the seller. Neither seller’s acknowledgment of a purchase order nor seller’s failure to object to conflicting, contrary or additional terms and conditions in a purchase order shall be deemed an acceptance of such terms and conditions or a waiver of the provisions hereof.
1. ORDERS. Orders shall 1. be initiated by Buyer issuing a Purchase Order or otherwise placing an order by means acceptable to Seller. Orders shall identify the Products, unit quantities, part numbers and requested delivery dates. All orders are subject to acceptance by Seller. No orders for Products may be cancelled or rescheduled without Seller’s written consent. Seller reserves the right to allocate sales of Products among its customers in its sole discretion.
2. PRICES. Prices shall be as specified by Seller and shall be applicable for the period specified in Seller’s quote. If no period is specified, prices shall be applicable for thirty (30) days. Notwithstanding the foregoing, prices shall be subject to increase in the event of an increase in Seller’s costs or other circumstances beyond Seller’s reasonable control. Prices are exclusive of federal, provincial, state, local or any other taxes, charges, levies and duties, shipping charges, forwarding agent’s and broker’s fees, consular fees and document fees. If Seller shall be liable for or shall pay any of the foregoing, the Seller shall charge such amount to Buyer in addition to the price of the Products.
3. TERMS OF PAYMENT. [Payment shall be net thirty (30) days from date of invoice or as otherwise specified by Seller in writing.] [Payment shall be made as follows: 50% Down Payment; Balance Net upon delivery. ]4 Buyer agrees to pay the entire net amount of each invoice from Seller pursuant to the terms of each such invoice without offset or deduction. Orders are subject to credit approval by Seller, which may in its sole discretion at any time change the terms of Buyer’s credit, require payment in cash, bank wire transfer or by check and/or require full payment of any or all amounts due or to become due for Buyer’s order before shipment of any or all of the Products. [If Seller believes in good faith that Buyer’s ability to make payments may be impaired or if Buyer shall fail to pay any overdue invoice, 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. Buyer agrees to submit such financial information from time to time as may be reasonably requested by Seller for the establishment and/or continuation of credit terms.]5 The date of collection of a cheque by the Seller shall be deemed the date of payment by the Buyer. Any cheque received from Buyer may be applied by Seller against any obligation owing from Buyer to Seller, regardless of any statement appearing of the face of such cheque, without discharging Buyer’s liability for any additional amounts owing from Buyer to Seller, and the acceptance by Seller of such cheque shall not constitute a waiver of Seller’s right to pursue the collection of any remaining balances. [Buyer shall pay interest on any invoice not paid when due from the due date to the date of payment at the rate of the lesser of (i) one and one-half (1-1/2%) percent per month and (ii) the highest rate permitted by applicable law.] If Buyer does not make payment when due, Seller may pursue any legal or equitable remedies, in which event Seller shall be entitled to reimbursement for costs of collection and reasonable legal fees.
4. ACCEPTANCE OF PRODUCTS AND PRODUCT RETURNS. Inspection and acceptance of the Products shall be Buyer’s responsibility. Buyer is deemed to have accepted the Products unless written notice of rejection is received by Seller within 30 days after delivery of the Products. Buyer waives any right to revoke acceptance thereafter. Buyer shall report any discrepancy in shipment quantity or damage within ten (10) days after delivery. No return of Products shall be accepted by Seller without Seller’s written approval. Returned Products must be in original manufacturer’s shipping cartons complete with all packing materials. Products for return shall be returned freight prepaid in the manner specified in the Seller’s written approval. If returned Products are claimed to be defective, a complete description of the nature of the defect must be included with the returned Products. Products not eligible for return shall be returned to the Buyer, freight collect.
5. FORCE MAJEURE. Seller shall not be liable for failure to fulfill its obligations herein or for delays in delivery due to causes beyond its reasonable control, including, but not limited, to, acts of God, revolution, natural disasters, acts or omission of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, riots, wars, acts of terrorism, delays in transportation or inability to obtain supplies or materials through its regular sources. Seller’s time for performance of any such obligation shall be extended for the time period of such delay or Seller may, at its option, cancel any order or remaining part thereof without liability by providing written notice of such cancellation to Buyer.
6. SELLER’S LIMITED WARRANTY. Seller warrants to Buyer that (1) upon delivery to Buyer the Products purchased hereunder shall conform to the applicable Seller’s specifications for such Products; and (2) during the one-year period commencing upon delivery to the Buyer the Product so delivered shall be free from defect due to faulty material or workmanship. Except as are contained in this paragraph 7, seller makes no warranties, conditions, guarantees or representations relating to the products, express or implied, statutory or otherwise. Without limiting the generality of the foregoing, seller makes no warranty respecting the merchantability of the products or their suitability or fitness for any particular purpose or use or respecting infringement. If any Product shipped to Buyer is found by Buyer to be defective, Buyer shall set aside such Product for inspection by Seller. Should any dispute arise as to whether defective Product does or does not comply with the applicable Seller’s specifications or is defective due to faulty material or workmanship as set forth in Sections 7(1) and 7(2) above respectively, the parties agree to submit within fifteen (15) days of the notice samples of the defective Product to a independent, third party testing laboratory. The cost of such testing shall be paid equally by the Buyer and Seller. The decision of the laboratory shall be binding on both parties. With respect to Products for which there is a warranty claim under Section 7(1) or 7(2) above, Seller’s liability is limited at Seller’s selection to (A) refund of Buyer’s purchase price for the Products (without interest), (B) repair of such Products, or (C) replacement of such Products, provided, however, Buyer gives Seller written notice promptly upon discovery thereof, and in any event, within sixty (60) days after delivery to Buyer. Seller shall transfer to Buyer whatever transferable warranties and indemnities Seller receives from the manufacturers of any subcomponents of the Products, if any, including any transferable warranties and indemnities in respect of patent infringement.
7. LIMITATION OF LIABILITIES. Seller’s total liability for any and all claims which may ariseunder this agreement or with respect to the products sold hereunder shall be limited to the purchase price of the products to which any such claim relates. Seller shall not be liable in any circumstances, howsoever caused, whether incontract, tort or otherwise for any loss of profits or for any direct, indirect, special, incidental, exemplary, punitive or consequential damages, losses, injury, costs or expenses of any nature relating to the products including without restriction loss, damage or injury arising out of the negligence of the seller or that of its employees, agents, representatives or other persons for whom in law the seller is responsible. Seller shall not be liable for and buyer shall indemnify, defend and hold seller harmless from any claims based on modification of any products by parties other than seller, or use in combination with other products.
8. USE OF PRODUCTS IN LIFE SUPPORT, NUCLEAR AND CERTAIN OTHER APPLICATIONS. Products sold by Seller are not designed, intended or authorized for use in life support, life sustaining, nuclear or other applications in which the failure of such Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. If Buyer uses or sells the Products for use in any such applications: (1) Buyer acknowledges that such use or sale is at Buyer’s sole risk; (2) Buyer agrees that Seller is not liable, in whole or in part, for any claim or damage arising from such use; and (3) Buyer agrees to indemnify, defend and hold Seller harmless form and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.
9. USE OF PRODUCTS BY BUYER. Buyer assumes all risk and liability for loss or injury in connection with the use of the Products whether used singly or in combination with other substances or products in any process whatsoever. Any information provided by Seller including without restriction technical information sheets and product brochures is based on tests believed to be reliable. However, as actual conditions of use may vary and are beyond the control of Seller, a Product’s specified characteristics and any recommendations for use, however communicated, are offered solely for Buyer’s evaluation and must be verified by it.
10. INTELLECTUAL PROPERTY. If a Product includes software or other intellectual property, such software or other intellectual property is provided by Seller to Buyer subject to the copyright and user license, the terms and conditions of which are set forth in the license agreement accompanying such software or other intellectual property. Nothing herein shall be construed to grant any rights or license to use any software or other intellectual property in any manner or for any purpose not expressly permitted by such license agreement.
11. CONFIDENTIALITY. All specifications, technical data, price lists, documents, materials and proprietary information relating to the Products are the confidential and proprietary information of Seller and shall be treated in confidence by Buyer and shall not be disclosed, reproduced or communicated to any third party in any way whatever except as is required in connection with the purchase and use of the Product by Buyer, and on terms and conditions agreed with Seller in writing. The foregoing provisions do not apply to information that was publicly available prior to the date of disclosure by Seller or that becomes publicly available after such disclosure other than pursuant to a breach of any obligation of confidentiality to Seller.
12. GENERAL. As used herein, terms appearing in the singular shall include the plural and terms appearing in the plural shall include the singular. No rights, duties, agreements or obligations hereunder may be assigned or transferred either party, by operation of law, merger or otherwise, without the prior written consent of the other. Any attempted or purported assignment shall be void. Notwithstanding the foregoing, Seller’s obligations under these Terms and Conditions may be performed by divisions, subsidiaries or affiliates of Seller. The obligations, rights, terms and conditions hereof shall be binding on the parties hereto and their respective successors and assigns. The waiver of any provision hereof or of any breach or default hereunder shall not be deemed a waiver of any other provision hereof or breach or default hereunder. No provision of these Terms and Conditions shall be deemed waived by a course of conduct unless such waiver is in writing signed by both parties and stating specifically that it was intended to modify these Terms and Conditions. These Terms and Conditions shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein and shall be treated in all respects as an Ontario contract. The Buyer and the Seller irrevocably and unconditionally attorn to the jurisdiction of the courts of the Province of Ontario and all courts competent to hear appeals therefrom. The United Nations Convention for the International Sale of Goods shall not apply. It is the express wish of the parties that this contract and all documents in connection with this contract be drawn up in English. Il est la volonté expresse des parties que le présent contrat et tous les documents qui s’y rattachent soient rédigés en langue anglaise.