TERMS AND CONDITIONS OF SALE
1. FORMATION OF CONTRACT
- Products and services furnished by SPD SALES LIMITED (“SPD”) are sold only on the terms and conditions herein unless otherwise expressly agreed in writing between the parties.
- Notwithstanding any terms and conditions on Purchaser’s order, SPD’s performance of any contract is expressly made conditional on Purchaser’s agreement to SPD’s Terms and Conditions of Sale unless otherwise specifically agreed to in writing by SPD. In the absence of such agreement, commencement of performance and/or shipment shall be for Purchaser’s convenience only and shall not be deemed or construed to be acceptance of Purchaser’s terms and conditions, or any of them. If a contract is not earlier formed by mutual agreement in writing, acceptance of any Product or service shall be deemed acceptance of the terms and conditions stated herein.
- All contracts for the sale of Products shall be construed under and governed by the law of the location of SPD’s head office at Mississauga, Ontario, Canada.
2. QUOTATIONS, PRICES and TERMS
- All quotations are subject to the terms and conditions stated herein as well as any additional terms and conditions that may appear on the face hereof.
- In the case of a conflict between the terms and conditions stated hereon and those appearing on the face hereof, the latter shall govern.
- Unless otherwise specified in writing, all quotations expire thirty (30) days after date thereof, may be terminated earlier by notice, and constitute only solicitations for offers to purchase.
- Unless otherwise stated in writing by SPD, all prices are F.O.B. Mississauga, Ontario and are exclusive of transportation, insurance, taxes (including, without limitation, any sales, use, or similar tax) licence fees, customs fees, duties and other charges related to the purchase by the Purchaser, and Purchaser shall report and pay any and all such shipping charges, premiums, taxes, fees, duties and other charges related thereto, and shall hold SPD harmless therefrom, provided that, if SPD, in its sole discretion, chooses to make any such payment, Purchaser shall reimburse SPD in full upon demand. Stenographic, typographical and clerical errors are subject to correction.
- Prices quoted are for Products only and do not include technical data, proprietary rights of any kind, patent rights, or packaging, unless expressly agreed to in writing by SPD.
- Unless otherwise agreed in writing by SPD, terms of payment are net thirty days following invoice. Pro-rata payments will become due as shipments are made. Interest at the rate of one and one-half per cent per month (eighteen per cent per annum) shall be payable on overdue accounts.
3. DELIVERY, RISK OF LOSS AND TITLE
- SPD shall send the Products to Purchaser by any commercially reasonable means at the address noted on the Purchaser’s order, but this requirement does not impose upon SPD the duty to make delivery at that point. Delivery of the Products by SPD to a carrier shall constitute delivery to Purchaser.
- No loss, injury or destruction of the Products subsequent to their delivery to a carrier for transportation to Purchaser shall release Purchaser from any obligations with respect to the Products, including without limitation, the obligation to pay the price reflected on the face hereof.
- SPD shall not be liable for failure to ship the Products by the specified delivery date unless SPD has given an express undertaking in writing to delivery the Products by a specified date with an agreed penalty for failure to deliver by the specified date and, in such a case, SPD’s liability shall be limited to the actual proven damages suffered by Purchaser as a result of the failure to meet the specified delivery date and shall in no case exceed the agreed upon penalty not to exceed the purchase price under the contract. In any case, SPD shall not be liable for delays due to circumstances beyond SPD’s control.
- Title to the Products shall remain in or with SPD regardless of mode of attachment to royalty or other property until full payment in cash has been made. Notwithstanding the foregoing, in the event that title to Products has passed to Purchaser prior to receipt by SPD of payment in full, SPD shall retain a purchase money security interest under the Personal Property Security Act of Ontario or other applicable law in all such Products until payment is received by SPD in full.
- Delivery dates quoted by SPD should be interpreted as estimated and in no event be construed as falling within the meaning of “time is of the essence”.
4. FORCE MAJEURE
- SPD shall not be liable for loss, damage, detention, or delay due to war, riots, civil insurrection or acts of the common enemy, fire, flood, strikes or other labour difficulty, acts of civil or military authority including governmental laws, orders priorities or regulations, acts of the Purchaser, embargo, car shortage, wrecks or delay in transportation, inability to obtain necessary labour, materials or manufacturing facilities from usual sources, faulty forgings or castings, or other causes beyond the reasonable control of SPD. In the event of delay in performance due to any such causes, the date of delivery or time for completion will be adjusted to reflect the actual length of time lost by reason of such delay. The Purchaser’s receipt of Products shall constitute a waiver of any claims for delay.
5. ASSIGNMENT, TERMINATIONS AND CANCELLATIONS
- Any assignment by Purchaser of any contract hereunder without the express written consent of SPD is void.
- No order may be terminated by Purchaser except by mutual agreement in writing.
- Terminations by mutual agreement are subject to the following conditions. Purchaser will pay, at applicable contract prices for all Products which are completely manufactured and allocable to Purchaser at the time of SPD’s receipt of notice of termination. Purchaser will pay all costs, direct and indirect, which have been incurred by SPD with regard to Products which have not been completely manufactured at the time of SPD’s receipt of notice of termination, plus and pro rata portion of normal profit on the contract. Purchaser will pay a termination charge on all other Products affected by the termination. SPD’s normal accounting practices shall be used to determine costs and other charges.
- No notice of cancellation or termination nor any other similar notice shall operate to relieve Purchaser from any obligations hereunder.
- Neither Purchaser nor any affiliated company assignee shall have the right to claim compensation or to set off against any amount which may become payable to SPD under this contract or otherwise.
7. LIMITED WARRANTY
- SPD distributes Products obtained from, or manufactured by others. SPD warrants that Products actually manufactured by it and delivered hereunder will be free of defects in material and workmanship for a period of twelve months from the date of placing the products in operation or eighteen months from the date of shipment, whichever shall first occur. Should any failure to conform to this Warranty be reported in writing to SPD within said period, SPD shall, at its option, correct such nonconformity, by suitable repair to such products or, to furnish a replacement part F.O.B. point of shipment, provided the Purchaser has stored, installed, maintained and operated such products in accordance with good industry practices and has complied with specific recommendations of SPD. Accessories or equipment furnished by SPD, but manufactured by others, shall carry whatever warranty the manufacturers have conveyed to SPD and which can be passed on to the Purchaser. SPD shall not be liable for any repairs, replacements or adjustments to the products or any costs of labour performed by the Purchaser of others without SPD’s prior written approval.
- The effects of corrosion, erosion and normal wear and tear are specifically excluded from SPD’s Warranty. Performance warranties are limited to those specifically stated by SPD’s proposal. SPD’s obligation shall be to correct in the manner and for the period of time provided above.
SPD MAKES NO OTHER WARRANTY OR REPRESENTATION OF ANY KIND WHATSOEVER, EXPERSSED OR IMPLIED, EXCEPT THAT OF TITLE, AND ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE PROVIDED BY LAW, ARE HEREBY EXCLUDED
- Correction by SPD of non-conformities whether patent or latent, in the manner and for the period of time provided above, shall constitute fulfillment of all liabilities of SPD for such non-conformities, whether based on contract, warranty, negligence, indemnity, strict liability or otherwise with respect to or arising out of such products.
- The Purchaser acknowledges that the Products have been purchased for use in the conduct of its business, that it is familiar with the Products and the specifications pertaining thereto, that its own engineering shall have reviewed and/or participated in preparing such specifications and the consequently Purchaser is satisfied that the Products are functional for the purpose for which they are acquired.
- No employee or representative of SPD or any of its affiliates is authorized to change the warranty in any way or to grant any other warranty. Only a corporate officer shall have the authority to change the terms of the warranty and any such change shall be executed in writing and signed by a corporate officer of SPD.
8. LIMITATION OF LIABILITY
- The remedies of the Purchaser set forth herein are exclusive, and the total liability of SPD with respect to this contract or the Products and services furnished hereunder, in connection with the performance or breach thereof, or from the manufacture, sale, delivery, installation, repair or technical direction covered by or furnished under this contract, whether based on contract, warranty, negligence, indemnity, strict liability or otherwise, shall not exceed the purchase price of the unit of Products upon which such liability is based.
- SPD and its suppliers shall in no event be liable to the Purchaser, any successors in interest or any beneficiary or assigns of this contract for any consequential, incidental, indirect, special or punitive damages arising out of this contract or any breach thereof, or any defect in, or failure of, or malfunction of the Products hereunder, whether based upon loss of use, lost profits or revenue, interest lost goodwill, work stoppage, impairment of other goods, loss by reason of shutdown or non-operation, increased expenses of operation, cost of purchase of replacement power or claims of Purchaser or customers of Purchaser for service interruption whether or not such loss or damage is based on contract, warranty, negligence, indemnity, strict liability or otherwise, and Purchaser shall insure against all such risks.
- The rights and remedies herein reserved to SPD shall be cumulative and in addition to any other rights and remedies provided by law.
- The failure of SPD to insist upon strict performance of the terms hereof shall not constitute a waiver of, or estoppel against asserting the right to require such performance in the future, nor shall a waiver or estoppel in any one instance constitute a waiver or estoppel with respect to a later breach of a similar nature or otherwise.
10. INDEMNITY FROM THIRD PARTY CLAIMS
- Purchaser shall protect, indemnify and hold SPD free and harmless from and against any and all liability and any and all losses, costs (including, without limitation, legal fees), claims and causes of action in favour of any and all persons (which term shall include, without limitation, individuals, corporations, partnerships, organizations and other legal entities), whatsoever on account of injury to or death of any such persons and or damage to or loss of the property of such persons caused by or arising out of the use of operation of the Products or any device, material or thing of which the Products are made a part or to which the Products are attached or within which the Products are enclosed while in Purchaser’s possession or subsequent to any transfer of possession to any third party, regardless of whether SPD and/or others may be worthy, partially or solely negligent or otherwise at fault, provided however, that such losses, costs, claims and causes of actions are not caused by the negligence of SPD, the manufacturer or by the manufacturer’s defects.
11. NUCLEAR LIMITATION OF USE
- Purchase warrants that the Products are not for use in or with any nuclear facility unless specifically so stated in writing and acknowledged by SPD. Purchaser accepts the responsibility for insuring that the Products are not used in violation of this limitation and Purchaser shall indemnify and hold SPD harmless from any and all liability including such liability resulting from SPD’s negligence arising out of said improper use.
- Any notice provided for hereunder must be given in writing. Notices shall be served and documents shall be submitted by depositing same in the mail, addressed to the appropriate party at the address reflected on the face hereof, postage paid and registered or certified with return receipt requested, or by delivering same in person to such other party or by prepaid telegram, telex, facsimile or cable.