Terms and Conditions of Sale.
These Terms and Conditions apply to every sale of Products by Black Diamond Engineered Products Inc. (Seller) to any person purchasing Products (Buyer) from Seller.
1. Definitions. The following defined terms have the following meanings herein:
Applicable Laws means all applicable statutes, regulations, codes, orders, and other legally binding requirements of governmental authorities in place from time to time;
Improvements means any improvements, additions, customizations, or other changes made by Seller to a Product originally manufactured by third party original manufacturer, whether such Improvements are initiated and offered by Seller or made at the request of Buyer;
Products means the parts, components, devices or materials identified in the Sales Order;
Quotation means Seller's standard form written Quotation which provides an estimate of the cost of the Products contemplated for sale, and in the absence of the written document includes the amount quoted by Seller to Buyer by telephone or email with respect to a specific quantity of a Product; and
Sales Order means Seller's standard form Sales Order/Confirmation provided by Seller to Buyer, or any email or other electronic sales order confirmation between Seller and Buyer containing comparable details to those otherwise set out in the standard form.
2. Terms and Conditions Apply and Prevail. By placing an order for Products pursuant to a Sales Order, Buyer acknowledges and agrees that these Terms and Conditions apply and prevail over any terms or conditions of Buyer or any other written requests, variations, or requirements of Buyer. To the extent of any inconsistency or conflict with any Buyer imposed or proposed terms and conditions set out in a purchaser order or otherwise, or the terms of any Quotation or Sales Order, these Terms and Conditions prevail. The Sales Order and these Terms and Conditions constitute the entire agreement and there are no understandings, agreements, or representations, express or implied, other than what is contained in these documents. These Terms and Conditions may only be modified in writing signed by authorized representatives of Seller and Buyer.
3. Confirmations. All estimates and orders are subject to confirmation by Seller. Seller may provide estimates by issuing a Quotation to Buyer. Seller will confirm orders by issuing a completed Sales Order to Buyer. Orders may not be cancelled, rescheduled, changed or substituted without Seller's consent in writing, in which case a new Sales Order will be issued to Buyer. Buyer requests for cancellation of an order must be in writing, and shall be determined at the sole discretion of Seller, and may be subject to a re-stocking fee and any reasonable costs incurred by Seller (which includes administrative costs). Seller agrees to use commercially reasonable efforts to accommodate any order cancellation request. Notwithstanding anything else contained herein, Products identified as "Non-Cancellable-Non-Returnable" or "NCNR" or similar language in the Sales Order shall not be cancelled or returned in any circumstances.
4. Pricing. Unless Seller otherwise specifies in writing, the Quotation price will remain in effect until the earlier of 30 days from the date of the Quotation, or the depletion of Seller's inventory of that Product which was in stock at date of the Quotation. If a Sales Order for the same or substantially the same Products quoted in the Quotation is dated within 30 days of the Quotation, and if such inventory is not depleted sooner, the Sales Order price will be the same as the Quotation price and will be the price due and payable. All Products will be charged to Buyer at, and Buyer agrees to pay, the price set out in the Sales Order. Unless specifically indicated in the Sales Order, prices set out in the Quotation and the Sales Order do not include harmonized sales tax (HST), any other goods or services tax, sales tax, or value added tax, storage, insurance, transportation, shipping, handling, demurrage, installation, start-up, operation or maintenance costs, customs broker fees, duties, or import fees associated with Products delivered outside Canada. Prices set out in the Quotation and the Sales Order are conditional on the timing and Product quantity set out in such documents, and are subject to change if Buyer subsequently requires different timing or a different type or quantity of Product. To the extent a Product was originally manufactured outside Canada, Seller is responsible for, and the price includes, all import into Canada fees paid by Seller.
5. Currency. All prices set out in the Quotation and/or Sales Order are in the currency indicated therein. CDN means Canadian dollars and USD means United States of America dollars.
6. Payment Terms. Buyer is required to pay Seller the net amount on the Sales Order without set-off or deduction, in accordance with the terms of the Sales Order. Payment may be made by cheque made out to Black Diamond Engineered Products Inc. as payee, money order, bank draft, credit card, wire transfer or other method confirmed by Seller to be appropriate, provided that any fees in connection with a method of payment shall be the responsibility of Buyer. All overdue payments bear interest, starting on the day the payment is due, at a rate of 2% per month (24% per annum). Any failure by Buyer to make payment when due, which is uncured for a period of five (5) business days following notice from Seller to Buyer, shall be an event of default hereunder entitling Seller to change its credit or payment requirements, suspend or cancel performance of any of Seller's obligations to Buyer, including cancelling or suspending shipment of any Products. If an event of default by Buyer is not cured within 90 days, Buyer shall be responsible to pay Seller's reasonable expenses, including but not limited to reasonable legal fees, to collect such amounts. Seller may at any time request financial information regarding Buyer, a deposit, or a guarantee from a suitable guarantor, in order to satisfy Seller's credit and risk management requirements.
7. Shipment and Delivery Risk. The "Due Date" indicated on the Sales Order is an approximate date on or about which Buyer has requested delivery of the Product to the "Ship To" location and which Seller agrees, conditional on Buyer having provided all necessary information, to use reasonable efforts to meet. Seller cannot guarantee that the Product will be delivered on such date. Unless other arrangements have been agreed to by Buyer and Seller, Buyer agrees to accept delivery when the Products are ready to ship. All Products are provided on the basis of FOB Bath or Burnsville from Seller's shipping dock located at Bath, Ontario, Canada or Burnsville, Minnesota, USA (the "Dock"). Buyer or its carrier shall take delivery from the Dock and shall accept all responsibility and liability, including shipping charges and delivery risk, with respect to the Products from the Dock. All rights, title and interest to and in the Product and all risk of loss and damage associated with the Products will transfer to Buyer at the Dock upon shipment. Seller shall have no responsibility or liability whatsoever for the Product after it leaves the Dock, and it is Buyer's responsibility to insure Products from the Dock. Unless otherwise indicated on the Sales Order or agreed in writing between the parties, shipping arrangements will be made by Buyer at the sole cost of Buyer.
8. Seller Representations and Limited Warranty. Seller represents and warrants that it is a corporation validly incorporated and existing under the laws of the Province of Ontario, and has the corporate power and authority to enter into this transaction to provide the Products on the terms and conditions set out herein. Seller represents and warrants that Improvements shall be free from defects in materials and workmanship when used under proper and normal conditions. Seller shall have no liability for Improvements or Products which have been the subject of damage (including accidental damage), misuse, improper installation, use of unauthorized parts or components, unauthorized conditions or power sources, neglect, corrosion, or inadequate or improper maintenance (which includes preventative maintenance) or technology. Buyer acknowledges and agrees that, unless indicated otherwise in writing by Seller, Seller is not the original manufacturer of the Products and, subject to section 13, this warranty does not apply to the Products, materials, parts or components thereof, to the extent manufactured by any person other than Seller. Seller expressly disclaims and makes no representation, warranty, or guarantee and shall have no liability with respect to defects in materials or workmanship of, or intellectual property rights associated with, any Product by or from an original manufacturer, or the suitability or performance of a Product for the use promoted by the original manufacturer. For Products with an original manufacturer's warranty, Seller will provide such manufacturer's warranty to Buyer if such warranty has been provided to Seller, and will use commercially reasonable efforts to assist with any claim by Buyer pursuant to the manufacturer's warranty. Notwithstanding that Seller (or entities or representations with whom Seller may have a business relationship) may have discussions with Buyer with respect to use or application or installation of the Product, Seller does not warrant and shall have no liability for Products installed or used in actual operating conditions which differ from the manufacturers' specified or recommended conditions.
9. Exclusive Remedy and Limitation on Liability. If Seller breaches a warranty hereunder Buyer's remedy is limited to, at Seller's option: (i) repair of Improvement or Product; (ii) replacement of Improvement or Product; or credit to Buyer's account for purchase price paid for Product. Buyer must provide notice of breach of warranty within 30 days of when Buyer discovered or ought to have discovered such breach, and acknowledges that time is of the essence. Buyer's failure to provide notice to Seller in accordance with this section shall release Seller from any obligation or liability with respect to such breach. Seller's liability for any reason, including any breach or default hereunder, shall not in any case exceed the price paid by Buyer for the Products. In no case shall any Seller Party be liable for any consequential, indirect, or punitive damages, including without limitation, economic loss, loss of business, loss of other equipment or products, incidental loss, anticipated profits, revenue or use, or costs or claims of any third person any nature. In no case shall Seller be liable to any person seeking to enforce a warranty through a Buyer. The warranties and remedies set out herein are exclusive and exhaustive, and there are no other representations or warranties of any kind, express or implied, statutory, by operation of law, or otherwise, to the fullest extent permitted by Applicable Law, as to merchantability, suitability or fitness for a particular purpose, or any other matter with respect to any Product, including against latent defects, made or given herein or elsewhere by Seller.
10. Indemnity. Buyer agrees to indemnify and hold harmless Seller and its shareholders, directors, officer, employees, agents and representatives for and against any claims, actions, proceedings, complaints, investigations, losses, damages, fines, penalties (including reasonable legal fees) brought against or incurred by a Seller as a direct or indirect result of any breach or default of Buyer's obligations hereunder, including any non-compliance with Applicable Laws, and any failure to meet all tax liability, including penalties and interest thereon.
11. Force Majeure. Seller will be relieved of its obligations hereunder to the extent that its performance is delayed or prevented by any cause beyond the reasonable control of Seller (an event of "Force Majeure"), including without limitation, an act of God, war, riot, insurrection, terrorism, civil disobedience, fire, explosion, accident, natural disaster, labour unrest, inability to obtain materials or components, orders or requests or investigations of any governmental authority, change of law or regulation, or interruption of technical or telecommunication systems. If any event of Force Majeure continues for a period of more than 10 continuous days, or exists for more than 20 days in any month, Buyer may revise the shipping date or may cancel the order if the Product is not identified as "NCNR".
12. Notice. Any notice required to be provided to Seller shall be sent to the General Manager by email at Sales@BDproduct.ca or by mail to 112 William Henderson Drive Unit 1, Bath, ON, Canada, K0H 1G0, or by fax to 613-544-2003.
13. Export and Import Laws. Buyer is solely responsible for compliance with all applicable laws governing the purchase and shipment of Products from Canada to other jurisdictions.
14. Intellectual Property and Confidentiality. All Improvements, designs, drawings, plans, specifications, systems, and business, proprietary, marketing, or financial information of Seller ("Confidential Information") shall remain the property of Seller and shall not be used for any purpose or disclosed by Buyer without the prior written consent of Seller. All intellectual property including any potential patent rights, in any Improvements shall at all times remain exclusively with Seller and no intellectual property rights in any Improvements shall vest with Buyer in connection with the purchase.
15. Assignment. Buyer shall not assign its rights or obligations under any Quotation or Sales Order or other agreement to purchase Products from Seller, without the prior written consent of Seller.
16. Dispute Resolution. Buyer and Seller agree to use commercially reasonable efforts to resolve any disputes arising hereunder. A party seeking resolution of a dispute shall provide notice in writing to the other party, which notice shall (i) identify a senior official from the notifying party, (ii) set out the facts giving rise to the dispute, and (iii) request that a senior official from the other party to resolve such dispute. Such senior officials shall use good faith efforts to reach a mutually agreeable resolution within 20 days failing which the parties agree that the dispute shall be resolved by binding arbitration by a single arbitrator mutually appointed, and if such appointment is not mutually agreed, appointed in accordance with the (Ontario) Arbitration Act, 1991, S.O. 1991, C-17, as may be amended or replaced from time to time. Except to the extent otherwise specified herein, the arbitration procedure shall be that set out in the Arbitration Act. Every award and determination by the arbitrator shall be final and binding and there shall be no appeal therefrom. Responsibility for the costs of arbitration shall be determined by the arbitrator based upon the nature of the issues raised and the relative success of each party.
17. Jurisdiction. This Agreement shall be construed and performed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. Any suit, action, claim or other proceeding arising out of or in any way connected with these Terms and Conditions or any other arrangement between Seller and Buyer shall be brought in a court in Ontario.
18. Disclaimer. Seller does not employ or control EMT Engineering Sales Ltd. ("EMT") or any employees, contractors, representatives or agent of EMT (each a "EMT Representative"), and hereby expressly disclaims any legal responsibility or liability for any representations, warranties, covenants, guarantees, or other comments or advice provided by any EMT Representative with respect to the Products.