BARRDAY
STANDARD TERMS AND CONDITIONS OF
Sellers Acknowledgement of Order is based upon these Terms and Conditions of Sale outlined herein. Seller rejects any and all other terms and conditions of sale proposed or discussed by the parties in connection with this transaction.The Order Acknowledgement and these Terms and Conditions of Sale which form part of the Acknowledgement of Order shall constitute the contract of sale between Buyer and Seller unless buyer objects to any term, in writing, within (7) days from the date hereof.
1. Seller Warranty:Seller warrants that the goods delivered to Buyer in connection with the Order Acknowledgment meet Sellers standard specifications for the goods in effect at the date of delivery.This Warranty is valid for a period of 60 days from the date of shipment.This Warranty is void and of no effect if the goods or any articles made from the goods are not stored or handled in accordance with the product specifications and/or the Certificate of Analysis. Seller makes no further warranty regarding the goods, whether express or implied (including, without limitation, any warranty of merchantability or fitness for a particular purpose or arising from any course of dealing or trade usage).In case of a breach of this Warranty attributable solely to actions or omissions of Seller, at Sellers option, the goods will be repaired or replaced or a credit in the amount of the sale price will be issued for the goods that fail to meet the warranted specifications following Sellers inspection of returned goods.
2. Goods Return:Goods delivered to Buyer and which breach Sellers Warranty must be returned in accordance with Sellers shipping specifications within 60 days from date of shipment for Warranty Claim purposes.After such time, written permission from the Seller for the return of such goods must be obtained.
3. Buyer Warranty:Buyer warrants and acknowledges that it (1) has expertise with respect to the goods, any articles made from the goods, and their properties, (2) is familiar with the nature and use of the goods, (3) has received, read and understood Sellers labelling, Certificate of Analysis and other literature concerning the goods, including without limitation technical information provided by the manufacturer of the material(s) used by Seller in making the goods, and (4) is aware of and understands the methods and requirements for proper storage and handling of the goods and appreciates the significant potential for product degradation and/or failure that may result from improper storage and handling. Buyer agrees and warrants that it will advise all customers and users of the goods or articles made from the goods of the risk of degradation and/or failure resulting from improper storage and handling of the goods.
4. Limitation of Liability:Sellers responsibility for any claims, damages, expenses, losses or liabilities arising out of or related to the goods delivered hereunder or for non-delivery of goods shall not exceed the purchase price paid by Buyer for such goods.In no event shall Seller be liable for any special, indirect, incidental or consequential damage or expense of any character, including but not limited to loss of use of productive facilities or equipment, lost profits, property damage, personal injuries or lost production, whether suffered by Buyer or any third party, irrespective of whether claims or actions for such damages are based upon contract, tort (including negligence and negligent misrepresentation), warranty, strict liability or otherwise.
5. Indemnification: Buyer indemnifies and saves Seller harmless from all claims, losses, damages, expenses (including legal fees) and liability resulting from or in any way connected, directly or indirectly, with a breach of Buyers Warranty or with the possession, handling, sale or use of the goods or articles made from the goods delivered hereunder.
6. Force Majeure:Should any cause beyond the control of a party hereto including, without limiting the generality of the foregoing, any war, threat of war, acts of terrorism, embargo, fire, flood, strike, lockout or accident, interfere with the product, sale, transportation, delivery or consumption, or with the supply to Seller from its regular source of supply, of the goods sold hereunder or any materials necessary for the manufacture thereof, than any such cause shall be deemed to be a case of Force Majeure and, provided that the subject party gives to the other party prompt notice of it, written or oral (but if oral, promptly confirmed in writing), orders or deliveries hereunder may be suspended or reduced during the period of such interference without liability for any resulting incomplete performance of this contract and Seller may then distribute its available supply among its customers, or any of them on such basis as it may in its sole discretion deem fair and practical.Seller shall have no obligation to purchase supplies of the goods specified herein to enable it to perform its obligations hereunder.
The party invoking Force Majeure shall make every reasonable effort to remedy the situation and remove, so far as possible and with reasonable dispatch, the cause of its inability to perform or comply, provided, however, that settlement of strikes, lockouts and other industrial disturbances shall be wholly within the discretion of the party involved.The party invoking Force Majeure shall give prompt notice of the cessation thereof.
7. Cancellation:Purchaser may cancel this contract upon written notice to Seller and only upon such terms as will indemnify and reimburse Seller for all loss or damage resulting therefrom, plus Sellers direct costs incurred, overhead, reasonable profits, costs and expenses to which Seller has become committed for fulfillment of the contract prior to cancellation.
8.
Title:Unless otherwise specified, title to the
goods will pass to Buyer as specified in the Acknowledgement of Order.
9. Security:If at any time Buyers financial responsibility appears unsatisfactory to Seller and Buyer fails to provide at Sellers request, satisfactory security in advance of any shipment, or if Buyer fails to comply with the terms of payment hereunder, Seller may then without prejudice to any of its other rights, defer any shipment hereunder until Buyer fulfills these obligations.
10. Taxes and Other Charges:Unless otherwise specified in writing, the sale price for goods does not include any applicable sales, uses, gross receipts, governmental, value added, or other taxes imposed.All such taxes, duties and/or service charges hereafter imposed or increased shall be Buyers sole responsibility. Unless otherwise specified in writing, responsibility for completion of all export and import duty and tax documentation for it applies to the purchase of goods from Seller and all related costs, will rest exclusively with Buyer.
11. Price Adjustments: Unless otherwise specified in writing, Seller has the right to change the price, freight allowance or terms of payment specified herein, provided Seller has given Buyer at least thirty (30) days prior written notice of any such change.Seller weights at shipping points shall govern.
12. Allocation: If for any reason Seller is unable to supply the total demand for the goods specified herein, Seller may in its sole discretion distribute its available supply of goods among its customers and Seller shall have no obligation to purchase supplies of the goods from third parties to enable it to perform its obligations to the Buyer.
13. General:Waiver by either party or any breach or default by the other hereunder shall not be deemed a waiver by any such party of any breach or default by the other which may thereafter occur.Sales hereunder shall enure to the benefit of, and be binding upon, the successors in business of the parties hereto but shall not otherwise be transferable or assignable in whole or in part without Sellers prior written consent.The parties agree that the Sale of Goods Act (Ontario) and the United Nations Convention on Contracts for the International Sales of Goods, or any amendment thereto, shall not apply to this Agreement.
14. Governing Law:The validity, construction and interpretation of all documents relating to this sale and the rights and duties of the parties hereto shall be governed by the laws of the Province of Ontario.