BURKERT CONTROMATIC INC. (hereafter called "Seller") agrees to sell all of its right, title, and interest in and to the merchandise described on the front of this agreement on the following terms and conditions of purchase by Buyer. Any alterations of Seller's terms and conditions of sale shall have no force or effect unless agreed to in writing.
THIS CONTRACT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN BUYER AND SELLER WITH RESPECT TO THE MERCHANDISE FURNISHED HEREUNDER. BUYER ACKNOWLEDGES THAT NO REPRESENTATION, PROMISE OR CONDITION NOT SET FORTH HEREIN HAS BEEN RELIED UPON IN MAKING ITS DETERMINATION TO PURCHASE.
The failure of either Buyer or Seller to enforce any rights under this contract of sale shall not constitute a waiver of such rights or any other rights under this contract of sale. In consideration of the mutual covenants and agreements herein contained, and other good and valuable consideration the receipt of which hereby acknowledged, the parties agree as follows:
- ORDERS: Orders are subject to acceptance at the home office of Seller.
- PRICES AND DISCOUNTS: All prices and discounts are in accordance with the established price and discount schedules of Seller, AND ARE SUBJECT TO CHANGE WITHOUT NOTICE. The price charged for the merchandise will be fixed as of the date the order for it is placed with Seller.
All prices are F.O.B. Burlington, Ontario. Buyer shall be charged for all shipping and handling.
Buyer shall place with Seller a MINIMUM ORDER of $100.00 (based on list prices) for each shipment of merchandise.
Subject to establishment of satisfactory credit, terms are strictly net cash thirty (30) days from date of invoice payable in Canadian funds. Any amount due but unpaid thirty (30) days after the invoice date shall be subject to an interest charge of 1-1/2% per month.
- CREDIT CONDITIONS: If, at any time, the financial conditions of Buyer, or Buyer's prior performance under the terms of this or any other agreement with Seller shall-cause Seller to reasonably question Buyer's ability to perform, Seller may demand adequate assurance to Buyer's due performance . Such demand for assurance may require full payment of all amounts then due and owing to Buyer or may require partial or full advance payment of the purchase price of goods which have been scheduled for delivery, but shall not be limited to the foregoing. If Buyer fails within 10 days of Seller's demand to provide Seller with such assurance, Seller shall be entitled to cancel any order then outstanding, shall be entitled to receive reimbursement for the reasonable and proper cancellation charges, and may proceed to collect, without limitation, any sums due and owing, its reasonable cancellation charged and all damages resulting from Buyer's default, including, but not limited to, Seller's attorney's fees and costs, regardless of whether or not suit is actually filed and/or taken to judgement or settlement, In the event of bankruptcy or insolvency of Buyer, or in the event of any proceeding brought against Buyer, voluntarily or involuntarily, under the bankruptcy or any insolvency laws. Seller shall be entitled to cancel any order then outstanding at any time during the period allowed by filing claims against the estate and shall receive therefrom reimbursement for its reasonable and proper cancellation charges.
Unless otherwise agreed in writing, all export sales are to be covered by an irrevocable confirmed letter of credit established in a acceptable Canadian bank.
- FORCE MAJEURE: Seller shall not be liable in any way for any default or delay in shipping due to contingencies beyond its control, or the control of its suppliers or subcontractors, which prevents or interferes with the Seller making delivery on the date specified, including but not limited to war, or restraints, affecting shipping, delivery of materials or credit as a result of war or war restrictions, non-arrival, delay or failure to produce materials as a result of war or war restrictions, rationing of fuel, strikes, lockouts, fires, bombings, accidents, floods, droughts and any other contingency affecting Seller, its suppliers, or sub-contractors; and Seller shall have the right to cancel a contract of sale or to extend the shipping date in the event that one or more of such contingencies prevent or delay shipment. In the event of delayed or extended shipping dates due to the above causes; and Buyer changes shipping instructions, any additional shipping charges shall be paid by Buyer as a part of the purchase price.
- WEIGHTS, DIMENSIONS AND DESIGNS: Shipping weights and dimensions given in Seller's catalogue are as close to actual as practicable but are not guaranteed. No claims will be allowed because of any discrepancy between actual weight or dimensions shipped and listed data. All designs and specifications shown in Seller's catalogue are subject to change without notice.
- SHIPPING AND PACKING: All material is carefully packed for shipment and Seller will not be responsible for loss, delay or breakage after having received "in good order" receipts form the transportation company. All claims for breakage, loss delay and damage should be made to carriers, but Seller will render Buyer assistance in securing satisfactory adjustment of such claims.
In the absence of directions, goods will be shipped by the method and via carrier Seller believes dependable.
Goods held by seller beyond original invoice date for the convenience of the Buyer will be priced as of either the date of completion or the date of the original order, whichever date produces the higher price, and the terms of payment will apply as from the original order date. Such goods will be subject to reasonable charges for warehousing and other associated expenses incident to such delay in shipping.
- CANCELLATION: An order is not subject to cancellation or change in specifications, shipping schedules or other conditions originally agreed upon without Seller's written consent and then only upon agreement to compensate Seller for all losses caused by such cancellation or changes.
- WARRANTY AND LIMITATION OF LIABILITY: Seller warrants to Buyer that the merchandise described on the front of this agreement is warranted in the packaging and collateral in effect at the time of delivery of such merchandise to Buyer for one year. Seller's sole obligation and the sole remedy of Buyer under this Warranty shall be replacement of the merchandise returned to Seller as defective. No other remedy shall be available to Distributor or any other party with respect to breaches of this Warranty.
Except as set forth in this section, Burkert Contromatic Inc. MAKES NO WARRANTIES OF ANY KIND, HEREUNDER, WHETHER EXPRESS, IMPLIED, OR ARISING BY TRADE USAGE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.The total liability of Seller under or in acceptance with the Agreement shall in no event exceed the total payments made by Buyer to to Seller under this Agreement for merchandise returned to or by Buyer as defective.
Seller is not responsible for damages to its products through improper installation, maintenance, use, repairs or adjustments or attempts to operate it above its rated capacity or voltage, intentionally or otherwise, or for unauthorized repairs.
- RETURNS FOR REPAIR: When equipment is returned for repairs due to causes not covered by Seller's warranty, Buyer shall notify Seller in writing and, after receipt of shipping advice, Buyer may return it to Burket Contromatic Inc. Receiving Department, 5002 South Service Road, Burlington, Ontario L7L 5Y7 carrying charges prepaid, If possible, Seller's Service Department will put such equipment in operating condition at the lowest possible cost. When necessary to make a return, give all possible information regarding the trouble experienced and complete details of the installation with which the device was used.
- NOTICE OF CLAIMS BY BUYER: Seller shall have no liability on any claim by buyer with respect to any product furnished hereunder alleged to be not in conformity with the terms and conditions hereof or with any warranty expressed in these terms and conditions unless written notice specifying such claim shall have been sent by Buyer to Seller promptly after such date as Buyer can establish as the earliest date on which the basis for such claim could have been discovered by Buyer with reasonable diligence within one year from the date of shipment. Except as stated in the preceding sentence, Seller shall not be liable to Buyer for any claim under this contract of which it does not receive written notice, or from the occurrence, if related to other than the condition of the product(s). Failure to so notify Seller shall constitute a waiver of any and all claims hereunder.
- LIMITATIONS UPON REMEDIES OF BUYER AND OTHERS: In the event of any product furnished hereunder is found to be not in conformity with the terms and conditions hereof or with any warranty expressed in these terms and conditions, THE REMEDIES OF THE BUYER AND ALL OTHERS CLAIMING UNDER, WITH OR THROUGH THE BUYER ARE EXPRESSLY LIMITED TO THE FOLLOWING:
(A) Seller will, at its option, either (1) repair or replace such product at the delivery point specified herein, or (2) repay the contract price herein of such product upon its return by Buyer to said delivery point, plus any transportation charges paid by Buyer in addition to such price.
(B) Except as expressly provided otherwise herein, the limit of Seller's liability with respect to any product(s) furnished hereunder, whether in contract, in tort, under any warranty, or otherwise, shall be the contract price herein of the specific product on which such liability is based.
(C) Seller shall not be liable for special or consequential damages in any claim, action, suit or proceeding arising under this transaction, nor shall there by any liability thereunder for claims for labour, loss or profits or goodwill, repairs or other expenses incidental to replacement.
- OWNERSHIP AND OTHER RIGHTS: Buyer has no title to or interest in the merchandise except as otherwise expressly provided on this Agreement. Seller has and shall retain sole and exclusive title to and ownership of the merchandise until completely paid for by Buyer. In no event shall Buyer acquire any trade secrets, copyrights, patents or rights to patent, trademarks or any other such intellectual property or proprietary rights embodied in the merchandise
- BOND PREMIUMS: In the event Seller shall be required as a condition of the manufacture and sale of equipment to furnish a performance bond, Buyer shall pay as part of the purchase price of said equipment all bond premiums and expense in connection therewith.
- COMPLIANCE WITH LAWS: Seller shall comply with all applicable Federal, Provincial and local laws and regulations in connection with the manufacture and sale of all equipment. No responsibility or liability will be taken for import duties, laws, regulations or taxed-imposed by any foreign country.
- TAXES: Any manufacturer's excise tax, sue tax, sales tax, or tax or duty of any nature whatsoever arising out of or assessed against orders, shall be added to the prices quoted or invoiced and shall be paid by Buyer; and in the event Seller is required to pay any such taxes or duties, Buyer shall promptly reimburse Seller therefor, unless Buyer shall provide Seller at the time an order is submitted with exemption certificates or other documents acceptable to taxing or custom authorities.
- APPLICABLE TAX: This Agreement shall be construed, interpreted and enforced in accordance with laws of the Province of Ontario and as though both parties were responsible for its drafting and preparation.
- ENTIRE AGREEMENT: This Agreement constitutes and represents the entire integrated agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous agreements, written or oral, regarding such subject matter. This Agreement shall not be modified unless such modification is in writing and signed by authorized representatives of both parties.
- WAIVER ACKNOWLEDGMENT: It is acknowledges by Buyer that Seller shall in no way be deemed or held to be obligated, liable, or accountable upon or under any claims guarantees, warranties, express or implied, statutory, by operation of law or otherwise in any manner or form beyond its express agreements hereto.