Terms & Conditions
TERMS AND CONDITIONS OF SALE
The following terms and conditions of sale (the “Terms and Conditions of Sale”) apply to the sale of products (“Products”) by NU-WEST, a division of Pol R Enterprises Inc. (herein referred to as “NU-WEST”) to the customer (herein referred to as the “Buyer”) and, more generally, govern the relationship between Buyer and NU-WEST.
1. ENTIRE AGREEMENT
1.1. The Terms and Conditions of Sale, together with Buyer’s Credit Application Form (if applicable), which are incorporated herein by reference, are between NU-WEST and Buyer, and form the entire agreement between NU-WEST and Buyer and apply to any transaction between them unless otherwise agreed to in writing.
1.2. The parties acknowledge and agree that all other oral or written agreements, including but not limited to purchase orders, which are different from or purport to be in addition to these Terms and Conditions of Sale are not applicable and are not binding on NU-WEST. Buyer will be deemed to have accepted these Terms and Conditions of Sale if any Products are sold, supplied or delivered by NU-WEST to Buyer.
1.3. Upon providing Buyer with a five (5) day prior written notice to that effect, NU-WEST shall be entitled to amend these Terms and Conditions of Sale, and the Credit Application Form (if applicable), and the same shall remain binding on the Buyer.
2. QUOTATION, PRICES AND TAXES
2.1. Unless otherwise agreed in writing, all prices are stated in Canadian currency (CAD) and are exclusive of shipping, brokerage, packaging and insurance costs, duties, and all taxes including federal, provincial, state and local sales, excise and value added, goods and services taxes and any other taxes, all of which, present or future, shall be assumed and paid by Buyer.
2.2. Subject to Section 2.3, price quotations provided to Buyer shall remain unchanged for a period of thirty (30) days following their issuance and shall automatically expire after such period, or as otherwise expressly stated in writing.
2.3. NU-WEST reserves the right to modify any price quotation, provided that it shall inform the Buyer at the earliest opportunity of such change.
2.4. Notwithstanding the foregoing, prices which are stated in general price lists, manufacture and/or distributor price lists, offers, brochures or similar documents may be modified at NU-WEST’s sole discretion, without the obligation of giving a written notice to that effect.
3.1. Unless otherwise agreed in writing, the purchase price shall be due in full by Buyer as of the invoice date, subject to the Terms and Conditions of Credit (if applicable), and shall not be subject to any discount, suspension, retention, charge back or reduction of any nature.
3.2. In the event Buyer fails to make any payment to NU-WEST when due, Buyer’s entire accounts with NU-WEST will become immediately due and payable without notice or demand and all past due amounts will be subject to an interest charge accruing at a rate of 2% per month, calculated and compounded monthly (26.82% per annum), or such lower rate as may be the maximum permissible rate of interest under applicable law.
4. CREDIT FACILITY
4.1. Buyer may apply for credit by filling out the Credit Approval Form incorporated herein by reference.
4.2. Credit is granted at the entire discretion of NU-WEST and may be reviewed, modified or withdrawn at any time.
5. PURCHASE ORDERS
5.1. All purchase orders are subject to acceptance by NU-WEST and, if applicable, credit approval of Buyer.
5.2. Purchase orders will be deemed accepted by NU-WEST upon the first of the following events to occur: (i) Delivery by NU-WEST to Buyer of a written acknowledgment and acceptance of the purchase order; (ii) performance of any of NU-WEST’s obligations under the purchase order, or (iii) issuance of an invoice by NU-WEST to Buyer in respect of the purchase order.
5.3. Purchase orders shall specify: (i) quantities of Products being purchased; (ii) Delivery date; and (iii) shipping instructions.
5.4. Buyer’s orders are irrevocable until acceptance or rejection and Buyer may not cancel, change or modify an order without the written consent of NU-WEST and full payment by Buyer of all applicable fees which are arising from such cancellation, change or modification.
5.5. If a change order is (i) requested by Buyer and authorized by NU-WEST after the relevant Products have been shipped, or (ii) in any way affects the shipping schedule, manpower or time and efforts involved with such shipment, then NU-WEST shall be entitled to revise the pricing of such Products. Unless otherwise agreed in writing, Buyer shall pay all costs involved with a change order, including but not limited to, a minimal restocking fee, emergency freight costs and additional local delivery fees.
5.6. If an order cancellation is requested by Buyer and authorized by NU-WEST, Buyer shall pay all costs involved with an order cancellation, including but not limited to, a cancellation fee, emergency freight costs and additional local delivery fees. If Buyer requires an order cancellation for Products that have already been shipped, Buyer shall refer to the return policy provided hereinafter in Section 8.
5.7. Fabricated or non-standard products sales are final, non-returnable and non-refundable.
6. SHIPMENT AND DELIVERY
6.1. Unless otherwise agreed by the parties, all purchase orders shall be delivered EXW (Ex Works – Incoterms 2010) NU-WEST’s shipping point. Risk of loss will transfer to Buyer upon tender of Products to Buyer, Buyer’s representative or common carrier. If Buyer causes or requests a delay of shipment, or if NU-WEST ships or delivers an order erroneously as a result of inaccurate, incomplete or misleading information supplied by Buyer or its agents or employees, all storage and other additional costs and risk will be borne by Buyer.
6.2. Delivery of the Products at NU-WEST’s premises, at a job site or at another location, as it will be decided between the parties, shall constitute formal delivery to Buyer, regardless of whether Buyer or Buyer’s representative is at such location at the time of delivery and signs a delivery receipt (the “Delivery”). NU-WEST will make a good faith effort to complete Delivery of all Products purchased by Buyer, provided that NU-WEST shall assume no responsibility or liability and will not accept any back charge for any loss or damage due to delay or inability to deliver, whether or not such loss or damage was made known to NU-WEST, including but not limited to as a result of NU-WEST’s non-performance caused by Force Majeure, labour disputes, civil unrest, accidents, the inability to obtain materials, delays of carriers, contractors or suppliers or any other causes of any kind which is beyond the control of NU-WEST.
6.3. If Buyer delays shipment of Products when ready due to any cause not attributable to NU-WEST, Buyer will be deemed to have accepted the Products on an as is basis and NU-WEST shall be entitled to issue an invoice to Buyer in that respect. Storage and handling costs, if any, will accrue to Buyer accounts until shipment is effectively made.
6.4. NU-WEST will retain title to all Products sold, supplied or delivered by NU-WEST until such time as the Applicant has paid for such Products in full.
7. INSPECTION AND ACCEPTANCE
7.1. Buyer shall examine and inspect the Products immediately upon Delivery and prior to installation. All claims for defects, shortages or discrepancies must be made to NU-WEST in writing within five (5) business days of Delivery, after which date Buyer will be deemed to have fully accepted the Products.
7.2. If it is demonstrated with relevant substantiating evidence and at NU-WEST’s satisfaction that there is such a defect, shortage or discrepancy, NU-WEST shall then remedy the situation at the earliest possibility by delivering additional or substitute Products, as the case may be.
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8. RETURN POLICY
8.1. All returns are subject to acceptance by NU-WEST and are subject to a restocking fee, in addition to any freight and restoration fees.
8.2. To be admissible for a return, the Products must (i) have been purchased no more than three (3) months prior to their date of return, (ii) be unused, unmodified or otherwise unaltered, and (iii) in new condition, suitable for resale in its original undamaged packaging.
8.3. Frost-sensitive Products cannot be returned from October 1st to April 1st of each calendar year.
9.1. Unless otherwise agreed in writing, NU-WEST warrants that all Products are sold free from material defects and meet the applicable written specifications provided to Buyer. In case of a breach of warranty, Buyer’s remedy shall be limited to (at NU-WEST’s sole discretion): (i) refund of Buyer’s purchase price for the defective Products, without interest; or (ii) replacement of the defective Products, provided that all such defective Products be returned to NU-WEST, along with acceptable evidence of purchase, within three (3) months of Delivery. No warranty will apply if the Products have been subject to modifications, misuse, improper storage, repackaging, neglect, accidents or if they have been combined with other products.
9.2. THE FOREGOING IS THE EXCLUSIVE REMEDY OF BUYER, AND IS IN LIEU OF ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS WARRANTY MAY BE MODIFIED ONLY IN WRITING BY AN OFFICER OF NU-WEST. NO OTHER REPRESENTATIVE OR ANY OTHER PERSON IS AUTHORIZED TO REPRESENT OR ASSUME FOR NU-WEST ANY WARRANTY EXCEPT AS SET FORTH HEREIN.
10. LIMITED LIABILITY
10.1. NU-WEST’S TOTAL LIABILITY TO BUYER FOR ALL CLAIMS OF ANY KIND WHATSOEVER, WHETHER BASED UPON CONTRACT, TORT (REGARDLESS OF THE DEGREE OF FAULT OR NEGLIGENCE) OR OTHERWISE, FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THE PERFORMANCE OR BREACH OF A PURCHASE ORDER SHALL IN NO EVENT EXCEED 100% OF THE NET AMOUNT OF THE ORDER PRICE.
10.2. IN NO EVENT SHALL NU-WEST BE LIABLE TO THE BUYER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGE, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF GOODWILL OR OTHER SIMILAR LOSSES OR DAMAGES EVEN IF NU-WEST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
11.1. Buyer shall indemnify, hold harmless and defend NU-WEST and its employees, officers, directors and agents from and against any actions, cause of action, judgment or claim for damages to property or bodily injury, loss of life, liability of any nature (including violation of any applicable laws or regulations in connection with the sale, transportation, installation, use or repair by Buyer of the Products), costs, or expenses including reasonable legal fees to the extent caused by the negligent act or omission or willful misconduct of or breach of these Terms and Conditions of Sale by Buyer.
12. FORCE MAJEURE
12.1. A Party will be excused from delays in the performance of a purchase order which arise from force majeure. “Force Majeure” means any unforeseen circumstances beyond the control and without the fault or negligence of the delaying party, causing a delay or failure in performance, and includes an act of God, war, civil insurrection, riot, acts of government, whether promulgated in the form of law or otherwise, labor disputes, shortages in Products, delays caused by Carrier, epidemics, serious floods, fires, explosions, earthquakes, tidal waves, typhoons, storms and/or accidents which affect vital equipment or facilities used in the performance of this order. In a case of Force Majeure duly notified to the other party, the period for performance by both parties shall be automatically extended for the duration of the event of force majeure. If the Force Majeure condition lasts more than one (1) month, and the parties are
unable to reach agreement on the conditions for going forward with their contract, the order shall be terminated, at the request of either Party.
13. PROPRIETARY INFORMATION
13.1. Buyer acknowledges that it is not the owner of the proprietary information related to the Products, including but not limited to, trademarks, trade-names, service marks, serial numbers, labels, tags, identifying marks, copyrights, patents, trade secrets, logotypes, brochures, designs, technical documents, advertising and other symbols and goodwill (hereinafter, collectively referred to as “Product Information”).
13.2. Buyer shall only use the Product Information identified and approved by NU-WEST from time to time to the extent reasonably necessary in carrying out its business activities related to the Products. More specifically, Buyer undertakes not to copy, reproduce or otherwise use or modify the Product Information without NU-WEST’s prior written authorization, nor file any patent or patent application for any product or substance similar to the Products or any component thereof or used for similar applications.
13.3. Buyer is liable for ensuring that the use of Product Information is legally permitted in the given territory and that the Product Information does not infringe third parties’ rights. NU-WEST does not give any warranty with regards to the valid use of the Product Information in a given territory and will assume no liability whatsoever with this regard.
14. OBLIGATIONS AND RESTRICTIONS
14.1. Buyer may not assign its rights or obligations hereunder without the prior written consent of NU-WEST.
14.2. Buyer shall inform NU-WEST in writing of any significant change to its business structure or that of its affiliated corporations within five (5) business days of such change, whether legal or otherwise, such as a change affecting the composition of its shareholders, directors or officers.
14.3. Buyer shall at all times, at its sole expense, ensure that the commercialization of the Products is carried out in accordance with all applicable laws, regulations and requirements established by any competent authority, as well as in accordance with the Product Information communicated by NU-WEST, such as the brochures and technical documents. With this regard, however, Buyer agrees and acknowledges that any such brochures and technical documents may not be used to commercialize the Products. Moreover, Buyer agrees not to remove or alter any Product Information affixed to any of the Products, containers or packages.
15.1. If Buyer is in default of these Terms and Conditions of Sale, NU-WEST may, at its option, cancel any unexecuted portion of any order to which these Terms and Conditions of Sale apply and/or exercise any right or remedy which may be available to it at law. Buyer will be in default under these Terms and Conditions if (i) Buyer fails to perform any covenant, obligation, undertaking or condition contained herein; (ii) Buyer is insolvent or Buyer fails to pay debts as they come due or if Buyer makes an assignment for the benefit of its creditors, or a receiving or receiving and manager is appointed for Buyer or for any of the Products ordered pursuant to these Terms and Conditions of Sale, or if any petition is filed to adjudicate Buyer bankrupt.
16. GOVERNING LAW AND NOTICES
16.1. These Terms and Conditions of Sale are exclusively governed by and interpreted in accordance with the laws of the Province where Nu-West conducts business at the option of Nu-West and the laws of Canada applicable therein, and the parties hereby attorn to the exclusive jurisdiction of the Courts of such Province. All actions, regardless of form, arising out of or related to a transaction governed by these Terms and Conditions of Sale must be brought against NU-WEST within the applicable statutory period, but in no event more than one (1) year after the date of the relevant invoice.
16.2. Any notice required under these Terms and Conditions of Sale shall be in writing and shall be sent by messenger service with acknowledgement of receipt or by facsimile.
16.3. It is the express wish of the parties that the Terms and Conditions of Sale, and any document relating thereto be drawn up in the English language. Il est de la volonté expresse des parties que les présents termes et conditions et tous les documents s’y rattachant soient rédigés en anglais.