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F.K. PETERSON TOOL MFG. TERMS AND
CONDITIONS OF SALE
1. Acceptance. The following terms and
conditions of sale are applicable to all sales of
products and/or services (the “Products” or
“Services”), and all quotations, order
acknowledgements, and invoices from F-K-P Tool
Manufacturing Limited (“Seller”) and to all purchase
orders from Seller’s customers (“Purchaser”) and
conditions applicable to the sale of Seller’s
Products or Services, except those relating solely
to quantities, shipping instructions, or
descriptions of the products set forth in
Purchaser’s Purchase Orders (collectively, “Purchase
Order Terms”). Purchase Orders, if accepted by
Seller, are accepted subject to the terms and
conditions set forth herein. Seller hereby rejects
any additional or different terms or conditions
proposed by purchaser, whether or not contained in
any of purchaser’s business forms including, without
limitation, purchase orders or on purchaser’s
website, and such additional or different terms and
conditions shall be void and of no effect unless in
a writing specifically agreed to by seller.
Purchaser’s acceptance of Products or Services
called for in said Purchase Order Terms shall
constitute its acceptance of the following terms and
conditions of sale (these “Terms and Conditions”).
Any changes to these Terms and Conditions must be in
writing and signed by Seller.
2. Price Quotations. If Price Quotations
are required by Purchaser, any such Price Quotations
shall be in writing and are only valid for thirty
(30) days from the date of the Price Quotation
unless otherwise set forth in Seller’s quote or
otherwise agreed to by the parties. All Price
Quotations by Seller are subject to change or
withdrawal without prior notice to Purchaser unless
otherwise specifically stated in the Price
Quotations. Price Quotations are made subject to
approval by Seller of Purchaser’s credit. Price
Quotations shall not constitute binding offers or
requirements to ship any particular quantity of
Products or to deliver any particular Services.
3. Prices. Prices are in Canadian Dollars
unless otherwise agreed to in writing by Seller and
are subject to change without notice. If a raw
material, component, or service provider raises its
prices, or imposes a surcharge on Seller, Seller
reserves the right to increase prices and/or
surcharge Purchaser and Purchaser agrees to accept
such price increase or surcharge until the term of
such price increase or surcharge or until the
termination of the contract to which these terms and
conditions apply is reached. Time of payment is of
the essence. All orders are accepted subject to
Seller’s price in effect at time of shipment.
4. Terms of Payment. The inspection rights
granted to Purchaser will not affect or alter the
payment terms or the timing of Purchaser’s payment
obligations. Under no circumstances will Purchaser
have a right of set-off. Seller shall have the right
to offset its payables against its receivables
related to goods or services purchased from Seller.
Unless otherwise expressly agreed to by Seller in
Seller’s Price Quotation, terms of payment are
thirty (30) days net from the date of Seller’s
invoice. No discount shall be allowed on
transportation charges. Purchaser agrees to pay
interest on overdue invoices at the rate of 1½ % per
month, but not higher than the highest rate
permitted by law. If Purchaser fails to make any
payment as required, Purchaser agrees to indemnify
Seller for all costs and expenses, including
reasonable attorney fees, court costs, and
associated expenses incurred by Seller.
5. Credit Approval. All shipments to be
made hereunder shall at all times be subject to the
approval of Seller’s credit department. Seller may
invoice Purchaser and recover for each shipment made
pursuant to these Terms and Conditions as a separate
transaction without regard to any other order or
agreement with Seller, or if, in Seller’s sole
judgment, the financial responsibility of Purchaser
is or becomes unsatisfactory, then Seller may, at
its option and without prejudice to any of its other
remedies, (a) defer or decline to make any shipments
hereunder except upon receipt of satisfactory
security or cash payments in advance, and / or (b)
terminate all Purchase Orders of Purchaser.
6. Accepted Purchase Orders. Once Seller
has either accepted a Purchase Order or has begun
taking actions with respect to such Purchase Order,
such Purchase Order cannot be cancelled, terminated
or modified by Purchaser in whole or in part except
with Seller’s consent in writing and then only upon
terms and conditions to be agreed upon which shall
include protection of Seller against all losses. If
Purchaser nonetheless repudiates the contract or
notifies Seller to proceed no further therewith,
Seller shall have the right to deliver all finished
goods and goods in process, and Purchaser agrees to
accept same and to pay to Seller the contract price
for all finished goods plus reimbursement, including
lost profits, for unfinished goods.
7. Cancellation. Seller reserves the right
to cancel any Purchase Orders or releases thereunder,
or terminate any Agreement relating to purchase of
Seller’s Products or Services on not less than
thirty (30) days notice.
8. Inspection/Non–Conforming Shipments.
Seller grants Purchaser the right to inspect
Products for a period of fifteen (15) business days
immediately following delivery (“Inspection
Period”). Purchaser must notify Seller of any
Products that do not conform to the terms applicable
to their sale within the inspection period, and
afford Seller a reasonable opportunity to inspect
such Products and cure any nonconformity. If
Purchaser fails to provide Seller with notice of
nonconformity within the Inspection Period,
Purchaser shall be deemed to have accepted the
Products. Purchaser will have no right to return any
Product without Seller’s prior written
authorization. Any return authorized by Seller must
be made in accordance with Seller’s return policies
then in effect and must be accompanied by a Returned
Material Authorization (“RMA”) from Seller.
Purchaser will be responsible for all costs and
expenses associated with any returns of Products and
will bear the risk of loss or damage of such
Products, unless Seller agrees otherwise in writing
or determines that the Products do not conform to
the applicable terms of sale. Seller, in its sole
discretion may reject any return of Product not
approved by Seller in accordance with this paragraph
or otherwise not returned in accordance with
Seller’s then current-return policies.
9. Title/Risk of Loss/Delivery. Unless
specifically otherwise provided in Seller’s invoice,
the carrier, and not Seller, will bill for freight
rates and other transportation charges. Such
payments are solely the responsibility of the
Purchaser, to be paid directly by the Purchaser to
the carrier. Seller reserves the right to schedule
its production and to make deliveries accordingly.
In circumstances where the Purchaser specifies
deliveries to be made in installments, which do not
conform to such schedule and Seller elects to
deliver as specified by Purchaser, Seller shall have
the right to adjust the price to cover Seller’s
additional costs. All Products shall be shipped
F.O.B. Seller’s plant and shall become the property
of Purchaser upon delivery to the carrier and
receipt of full payment by Seller. Purchaser shall
assume all risk and liability for loss, damage, or
destruction, as well as the results of any use or
misuse by third parties who may acquire or use the
Products illicitly after the delivery to the
carrier. Unless mutually agreed upon, shipping dates
are approximate and are based upon prompt receipt of
all necessary information. Seller reserves the right
to ship items in a single or multiple shipments.
10. Damage. Purchaser shall notify Seller
and the delivering carrier within fifteen (15)
business days from date of receipt of Products, of
any damage or shortage, and afford Seller a
reasonable opportunity to inspect the Products. Any
loss occasioned by damage or shrinkage in transit
will be for Purchaser’s account and claims for such
loss shall be made solely against the carrier.
11. Quantities. Unless otherwise agreed in
writing, any variation in quantities shipped over or
under the quantities ordered (not to exceed 10%)
shall constitute compliance with Purchaser’s Order
and the stated price per item will continue to
apply.
12. Warranty. Seller warrants only that
the products or services sold hereunder will be
conveyed free and clear of any lien, security
interest or encumbrance created by seller or any
party claiming by, through or under seller, and will
be free from substantial defects in material and
workmanship under normal use given proper
installation and maintenance for a period of six (6)
months from the date of delivery to the carrier.
Seller shall have the right either to replace or
repair any defective products, to refund the
purchase price upon return of the products or to
grant a reasonable allowance on account of such
defects, and seller’s liability and purchaser’s
exclusive remedy for defective products shall be
limited solely to replacement, repair, refund or
allowance as seller may elect.
Seller shall be given a reasonable opportunity to
investigate all claims and no products shall be
returned to seller until after inspection and
approval by seller and receipt by purchaser of a RMA.
13. Disclaimer of Further Warranties.
Except as set forth above, Seller makes no warranty
or representation or any kind, express or implied
(including no warranty of merchantability or fitness
for any particular purpose) with respect to its
Products or Services.
14. Limitation of Liability and Remedies.
Seller shall not be liable, and Purchaser waives all
claims against Seller, for incidental, special,
punitive or consequential damages, lost profits or
commercial losses, whether or not based upon
Seller’s negligence or breach of warranty or strict
liability in tort or any other cause of action.
Seller will not be liable to Purchaser for any loss,
damage, or injury to persons or property resulting
from the handling, storage, transportation, resale,
or use of its products in manufacturing processes,
or in combination with other substances, or
otherwise. In no event will Seller’s liability under
these Terms and Conditions or in connection with the
sale of Products by Seller exceed the purchase price
of the specific products or Services as to which the
claim is made.
15. Inventory. Except as provided in
Sections 8 and 12 hereof, Seller will neither accept
return of Product, nor be responsible for its
destruction.
16. Technical Data. All physical
properties, statements and recommendations are
either based on the tests or experience that Seller
believes to be reliable, but they are not
guaranteed.
17. Product Use. Purchaser is solely
responsible for determining whether any Product is
fit for a particular purpose and suitable for
Purchaser’s method of application. Accordingly, and
due to the nature and manner of use of Seller’s
Products, Seller is not responsible for the results
or consequences of use, misuse or application of its
Products by anyone.
18. Tooling/Molds/Dies. Unless otherwise
agreed in writing signed by Seller, all material,
equipment, facilities, and special tooling, (which
term includes but is not limited to tools, jigs,
dies, fixtures, molds, patterns, special taps,
special gauges, special test equipment, and
manufacturing aids and replacements thereof), used
in the manufacture of the Products covered by any
Purchase Order shall remain the property of Seller.
Any material, tooling, or equipment furnished to
Seller by Purchaser shall be and remain the personal
property of Purchaser with the title to and right of
possession remaining in Purchaser.
19. Taxes. Purchaser shall pay to Seller,
in addition to the purchase price, the amount of all
fees, duties, licenses, tariffs, and all sales, use,
privilege, occupation, excise, or other taxes,
federal, state, local or foreign, which Seller is
required to pay or collect in connection with the
Products or Services sold to Purchaser. Failure by
the Seller to collect any such fees or taxes shall
not affect Purchaser’s obligations hereunder and
Purchaser shall fully defend, indemnify and hold
harmless Seller with respect to such tax
obligations.
20. Ownership of Intellectual Property.
All drawings, know-how, designs, specifications,
inventions, devices, developments, processes,
copyrights, trademarks, patents and applications
therefore, and other information or Intellectual
Property disclosed or otherwise provided to
Purchaser by Seller and all rights therein
(collectively, “Intellectual Property”) will remain
the property of Seller and will be kept confidential
by Purchaser in accordance with these terms and
conditions. Purchaser shall have no claim to, nor
ownership interest in, any Intellectual Property and
such information, in whatever form and any copies
thereof, shall be promptly returned to Seller upon
written request from Seller. Purchaser acknowledges
that no license or rights of any sort are granted to
Purchaser hereunder in respect of any Intellectual
Property, other than the limited right to use the
Seller’s proprietary Products purchased from Seller.
Unless specifically provided for and itemized for
payment as agreed to by Seller, the sale of Products
or Services by Seller to Purchaser does not include
any design, development or related services
associated with the Intellectual Property of the
Seller.
21. Confidential Information. All
information furnished or made available by Seller to
Purchaser in connection with the subject matter of
these Terms and Conditions or of Purchaser’s
Purchase Order shall be held in confidence by the
Purchaser. Purchaser agrees not to use such
information or disclose such information to others
without Seller’s prior written consent. The
obligations in this paragraph will not apply to any
information which (a) at the time of disclosure was
or thereafter becomes, generally available to the
public by publication or otherwise through no breach
by the Purchaser of any obligation herein, (b) the
Purchaser can show by written records was in the
Purchaser’s possession prior to disclosure by
Seller, or (c) is legally made available to the
Purchaser by or through a third party having no
direct or indirect confidentiality obligation to
Seller with respect to such information.
22. Infringement and Indemnification. (a)
Except as set forth below, Seller agrees to defend,
indemnify and hold the Purchaser harmless against
any claims, costs, damages, liability and expenses
resulting from actual patent, trademark, or
copyright infringement, misappropriation of
confidential information, or violation of any other
Intellectual Property right, domestic or foreign,
that may arise from the sale of Seller’s proprietary
Product to the Purchaser as such pertains to the
subject matter of these Terms and Conditions
(provided that the Product (i) is not modified in
any way by the Purchaser or any other party, (ii) is
not a resourced part provided by Purchaser to
Seller, and (iii) is used in the manner intended by
Seller). If a suit or claim results in any
injunction or any other order that would prevent
Seller from supplying any part or Product falling
under these Terms and Conditions, or if the result
of such a suit or claim would, in the reasonable
opinion of Seller, otherwise cause Seller to be
unable to supply such parts or Products, Seller
shall have the right, at its option, if it so
chooses, to do one or more of the following: (i)
secure an appropriate license to permit Seller to
continue supplying said parts or Products to
Purchaser; (ii) modify the appropriate part or
Product so that it becomes non-infringing; (iii)
replace the appropriate part or Product with a
non-infringing but practically equivalent part or
Product; or (iv) if the Seller cannot reasonably
accomplish the actions specified in subparagraphs (i)
– (iii), then in Seller’s sole discretion, Seller
may discontinue selling the part or Product without
any further liability to Purchaser. (b) Purchaser
agrees to defend, indemnify and hold Seller harmless
against any claims, costs, damages, liability and
expenses resulting from actual or alleged patent,
trademark, or copyright infringement,
misappropriation of confidential information, or
violation of any other Intellectual Property right,
domestic or foreign, that may arise from the making,
using or selling of any part or Product or using any
process that is designed or specified by the
Purchaser. (c) If any claim is made by a third
party on the basis of which indemnification may be
sought under this paragraph, the party entitled to
indemnification (the “Indemnified Party”) shall give
written notice of such claim to the party liable for
such indemnification (the “Indemnifying Party”)
promptly after the Indemnified Party has actual
notice of such claim. The Indemnifying Party shall
have the right to defend and/or settle such claim at
its expense, provided that it does so diligently and
in good faith. The Indemnified Party shall cooperate
with such defence and/or settlement and shall have
the right to participate in (but not to control)
such defence and/or settlement at its expense. No
settlement shall be entered into unless the
Indemnified Party shall be released from all
liability for such claim.
23. Force Majeure. Seller shall not be
liable for failure to perform or delay in
performance or delivery of any Products or Services
due to (a) fires, floods, strikes, or other labour
disputes, accidents, sabotage, terrorism, war,
riots, acts of precedence or priorities granted at
the request or for the benefit, directly or
indirectly, of any federal, state or local
government or any subdivision or agency thereof,
delays in transportation or lack of transportation
facilities, restrictions imposed by federal, state
or local laws, rules or regulations; or (b) any
other cause beyond the reasonable control of Seller.
In the event of the occurrence of any of the
foregoing, the time for performance shall be
extended for such time as may be reasonably
necessary to enable Seller to perform. Seller may,
during any period of shortage due to any of the
above circumstances, allocate its available supply
of Products or Services among itself and its
Purchasers in such manner as Seller, in its
judgment, deems fair and equitable.
24. Assignment and Delegation. No
assignment of any rights or interest or delegation
of any obligation or duty of Purchaser under these
terms and conditions, Seller’s Price Quotation,
order acknowledgement, or invoice, or Purchaser’s
Purchase Order may be made without the prior written
consent of Seller. Any attempted assignment or
delegation will be wholly void and totally
ineffective for all purposes.
25. Integration Clause. These Terms and
Conditions constitute the terms and conditions to
the contract of sale and purchase between Seller and
Purchaser with respect to the Products covered by
these Terms and Conditions, and supersedes any prior
agreements, understandings, representations and
quotations with respect thereto. No modification
hereof shall be of any force or effect unless in
writing and signed by the party claiming to be bound
thereby.
26. Waiver. No failure of Seller to insist
upon strict compliance by Purchaser with these terms
and conditions or to exercise any right accruing
from any default of Purchaser shall impair Seller’s
rights in case Purchaser’s default continues or in
case of any subsequent default by Purchaser. Waiver
by Seller of any breach by Purchaser of these terms
and conditions shall not be construed as a waiver of
any other existing or future breach.
27. Choice of Laws. Any dispute arising
out of or related to these Terms and Conditions
shall be governed by and construed according to the
laws of the Province of Ontario. The parties hereby
agree to the exclusive jurisdiction and venue of the
courts of the Province of Ontario in relation to all
questions pertaining to the interpretation,
applicability, enforceability or validity of these
terms and conditions.
28. Severability. If any provision herein
shall be held to be unlawful or unenforceable, the
remaining provisions herein shall remain in full
force and effect.
29. Nuclear Application Exclusion. It is
expressly understood and agreed that Purchaser will
not use, cause to be used or make available for use
the goods described herein in any nuclear
application including, but not limited to, use in
connection with any nuclear reactor, any nuclear
power generating system or any nuclear waste (or
spent fuel) disposal project. Any subsequent nuclear
application of the goods is wholly unauthorized and
shall be deemed to be unknown to, unforeseeable to
and unintended by Seller. |
