Terms and Conditions of Sale
- All sales and offers to sell by PIRTEK, whether by PIRTEK Fluid Systems (Canada) Ltd. or any PIRTEK franchisee, (hereinafter called ‘‘Seller’’) of products offered and sold by it are subject to these terms and conditions of sale (these “Terms”), which are hereby deemed incorporated into all purchase transactions and all orders and offers to purchase submitted to Seller for acceptance and into all of Seller’s quotations, acceptances and contracts of sale. Without limiting the generality of the foregoing in this Section 1, these Terms shall be applied to and govern all purchases of Goods by Buyer.
- CONTROLLING CONDITIONS. Any offer to purchase or order by any purchaser of goods (collectively, “Goods”) from Seller (any such purchaser is hereinafter called “Buyer”) is accepted on the condition that these Terms shall apply and shall constitute the entire agreement between the parties. These Terms shall supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms shall prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. Notwithstanding anything to the contrary in these Terms, if a written contract signed by both parties is in existence covering the sale of Goods, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
- PRICES. Prices are subject to change without notice. However, on orders for shipment within fifteen (15) days, prices in effect at the time of the order acknowledgment shall apply unless the shipment is delayed beyond fifteen (15) days from the date of acceptance by Seller. On any order or any part of an order shipped fifteen (15) days or more after the date of acceptance by Seller, whether the delay is in accordance with the terms of the order or is from any other cause whatever, prices in effect at the time of shipment shall apply. Before making any shipment at a price in excess of that stated in the price quotation or accepted order, Seller shall notify Buyer stating in the notice what part of the order is to be shipped at such higher price and thereupon Buyer shall have the right to cancel the part of the order to which the increased price applies. If Buyer does not so cancel within three (3) days of said notice, the price increase recited in the notice shall be effective and Buyer shall have no further right to cancel.
- TAXES. Prices, unless expressly indicated otherwise in writing, do not include any taxes payable to any Governmental Authority (including, without limitation, all sales, use, value add and excise taxes, or any other similar taxes, duties and charges of any kind imposed by any Governmental Authority) now or hereafter enacted, applicable to any Goods. As used in the immediately foregoing sentence, “Governmental Authority” means any federal, provincial, local or foreign government or political subdivision thereof, or any agency or instrumentality of any such government or political subdivision. Buyer shall be responsible for all such charges, costs and taxes and, to the extent that Seller is legally obligated to collect any such charges, costs and/or taxes, such charges, costs and/or taxes shall be added by Seller to the sales price for the applicable Goods and shall be paid forthwith by Buyer to Seller unless Buyer provides Seller with a proper tax exemption certificate.
- TERMS AND METHOD OF PAYMENT.
- When Seller has extended credit to Buyer, terms of payment shall be as stated on Seller’s invoice. The amount of credit may be changed or credit withdrawn by Seller at any time. Notwithstanding anything to the contrary in these Terms, Seller shall be under no obligation to make any shipment when Buyer is in default under these Terms or any other agreement between Buyer and Seller. Pro rata payments are due from Buyer as shipments are made by Seller. If shipments are delayed by Buyer, payments are due from the date when Seller is prepared to make such shipments.
- Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, Seller’s reasonable Legal Fees and Expenses. As used in these Terms, “Legal Fees and Expenses” means any and all of Seller’s lawyers’ and paralegals’ fees and expenses, including, without limitation, investigative fees, administrative costs, court costs and all expenses, even if not taxable as court costs (including, without limitation, all such expenses, fees, taxes and costs incident or related to arbitration, appellate, bankruptcy and post-judgment proceedings), and all other charges billed by the lawyers to Seller (including, without limitation, any fees and costs associated with collecting such amounts).
- In addition to all other remedies available under these Terms 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 Goods if Buyer fails to pay any amounts when due hereunder.
- Buyer shall not be entitled to 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, bankruptcy or otherwise.
- DELIVERY.
- All Goods shall be delivered freight on board Seller’s plant and risk of and liability for loss and damage in transit or thereafter shall pass to Buyer upon Seller’s delivery of Goods to a common carrier for shipment to Buyer or upon delivery to Buyer, whichever occurs first. Shipping and insurance charges, packaging costs, any duty and all taxes related to Buyer’s order shall be paid by Buyer. Claims for damages in transit must be asserted against the carrier.
- Buyer shall inspect all Goods within seven days of receipt (the “Inspection Period”). Buyer shall be deemed to have accepted all Goods received by Buyer unless Buyer notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents. For the avoidance of doubt, nothing in this Section 6(b) shall in any way limit anything set forth in Section 6(a).
- If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, either (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the amount paid by Buyer for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to the facility of Seller that is indicated by Seller in writing following Seller’s receipt of such notice of Nonconforming Goods. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replacement Goods.
- Buyer acknowledges and agrees that the remedies set forth in Sections 6(b) and 6(c) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Sections 6(b) and 6(c), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return to Seller Goods purchased under these Terms.
- All stipulated delivery or shipment dates are estimated only. Seller reserves the right to make delivery in installments and the contract shall be severable as to each such installment. Delay in delivery or other default in any installment shall not relieve Buyer of its obligation to accept and pay for remaining deliveries. If delivery of any Goods is delayed in transit due to default in payment of the purchase price or to delay in receipt of shipping instructions, documents for payment, required inspection, export permit or other cause for which Seller is not responsible, charges for demurrage and storage shall be paid by the Buyer. All claims for delay in delivery shall be deemed waived unless presented to Seller in writing within thirty (30) days after delivery of each shipment.
- LIMITATIONS OF LIABILITY.
- IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURIES OR WRONGFUL DEATH), REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND/OR THE SALE OF AND/OR USE OF AND/OR INABILITY TO USE ANY GOODS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR GOODS.
- EACH PARTY ACKNOWLEDGES AND AGREES THAT THE MUTUAL LIMITATIONS OF LIABILITY CONTAINED IN THIS SECTION 7 REFLECT THE ALLOCATION OF RISK SET FORTH IN THESE TERMS AND THAT NEITHER PARTY WOULD AGREE TO THESE TERMS, AND SELLER WOULD NOT SELL GOODS TO BUYER, WITHOUT THESE LIMITATIONS OF LIABILITY. THE LIMITATIONS ON AND DISCLAIMERS OF REMEDIES, WARRANTIES AND DAMAGES SET FORTH IN THESE TERMS (INCLUDING, WITHOUT LIMITATION, IN THIS SECTION 7 AND IN SECTION 8, SHALL APPLY WHETHER OR NOT ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- CONTINGENCIES. Seller shall not be responsible for any failure to perform or delay in performance, whether in manufacturing, delivery or otherwise, due to causes beyond its control. These causes shall include, but not be restricted to, fire, storm, flood, earthquake, destruction of plant or facilities, explosion, accident, act of public enemy, war (whether declared or undeclared), rebellion, insurrection, riot, sabotage, epidemic, quarantine restriction, labor dispute, labor shortage, strike, lockout, blockade, transportation or other embargo, failure or delay in transportation, inability to secure raw materials, failure of machinery for the manufacture of its products, acts of God, acts of the Canadian or any other federal government or any agency thereof, acts of any provincial or local government or agency thereof, and judicial action, or any other cause whatsoever, whether similar or dissimilar to those set forth in the foregoing in this Section 8, all whether foreseen or unforeseen.
- LIMITATION OF WARRANTIES AND CLAIMS. The Seller makes no warranty or condition, express or implied, with respect to Goods sold and/or the services rendered by the Seller hereunder. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OR CONDITIONS WITH RESPECT TO ANY GOODS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR CONDITION OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, 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 LOSS OF USE OR FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURIES. To the extent any component or part of Goods sold and/or services rendered hereunder have not been manufactured by the Seller, the Seller’s sole obligation shall be limited to making available to Buyer any existing applicable warranty of the manufacturer of such component or part to the extent Seller can do.
- NO THIRD-PARTY BENEFICIARIES. These Terms are 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.
- RELATIONSHIP OF THE PARTIES. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- COMPLIANCE WITH LAW. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms.
- CHANGES. Buyer’s order shall not be canceled, changed or reduced in amount, nor any deliveries suspended by Buyer, without Seller’s prior written consent.
- RETURNED GOODS. Goods may not be returned to Seller for credit without the prior written consent of Seller. Seller retains the right to charge a restocking charge, which shall be determined at Seller’s discretion, for Goods returned for credit. Any Goods returned for credit must be accompanied by Seller’s invoice number and date of purchase.
- NONWAIVER OF DEFAULT. Each shipment made under any order shall be treated as a separate transaction, but in the event of any default or breach by Buyer, Seller may decline to make further shipments without in any way affecting its rights under such order. If, despite any default or breach by Buyer, Seller elects to continue to make shipments, its actions shall not constitute a waiver of any default or breach by Buyer or in any way affect Seller’s legal remedy for such default or breach.
- GOVERNING LAW. All matters arising out of or relating to these Terms (including without limitation, to the validity, construction and performance of these Terms or any sale made hereunder) shall be governed by and construed in accordance with the internal laws of the province where Seller’s principal place of business is located, without giving effect to any choice or conflict of law provision or rule (whether of such province or of any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of such province.
- JURISDICTION AND VENUE. Any legal suit, action or proceeding arising out of or relating to these Terms shall be instituted in the courts of the province where Seller’s principal place of business is located in each case located in the city where Seller’s principal place of business is located, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
- JURY WAIVER. IN ANY CIVIL ACTION, COUNTERCLAIM, OR PROCEEDING, WHETHER AT LAW OR IN EQUITY, WHICH ARISES OUT OF, CONCERNS, OR RELATED TO THESE TERMS OR THE SALE OR PURCHASE OF ANY GOODS, WHETHER SOUNDING IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, TRIAL SHALL BE TO A COURT OF COMPETENT JURISDICTION AND NOT TO A JURY. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY.
- TIME FOR BRINGING ACTION. Any action in relation to these Terms or any Goods must be commenced within one (1) year after the cause of action has accrued.
- MODIFICATIONS OF GENERAL TERMS AND CONDITIONS. No addition to or modification of, or any waiver with respect to, any provisions upon the face or reverse of this form shall be binding upon Seller unless made in writing and signed by a duly authorized representative of Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- ASSIGNMENT. Buyer shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section 21 shall be null and void. No assignment or delegation shall relieve Buyer of any of its obligations under these Terms.
- SEVERABILITY. In the event that any provision contained in these Terms is determined by a court of competent jurisdiction to be invalid or unenforceable, in whole or in part, the remaining provisions and any partially enforceable provision shall, nevertheless, be binding and enforceable.
- LAWYERS’ FEES. Buyer shall pay Seller all fees, costs and expenses of Seller reasonably incurred in the enforcement of Seller’s rights under or with respect to these Terms, including, without limitation, Seller’s reasonable Lawyers’ Fees and Expenses.