Terms and Conditions of Sale
1.1 All quotations are made, and all orders from the customer (the “Customer”) for products, goods or other property (collectively, the “Products”) are accepted, by Dafco Filtration Group Corporation (the “Company”) subject to the following terms and conditions.
1.2 Except for the terms, conditions and warranties set out in any customer sales agreement between the Company and the Customer (the “CSA”), all other terms, conditions and warranties whatsoever (whether contained in any official order form of the Customer or otherwise) are rejected and excluded from the agreement between the Company and the Customer unless expressly and specifically accepted in writing by the Company.
1.3 All pricing information and quotations given to the Customer by the Company are for information purposes only and are not binding on the Customer or the Company until a purchase order has been submitted by the Customer and accepted by the Company in connection with the content of the quotation. All quotations are valid for sixty (60) days pending customer’s approval.
1.4 If any statement or representation has been made to the Customer by the Company, or its servants or agents, upon which the Customer relies, other than a statement or representation set out in these Terms and Conditions, the CSA, the documents enclosed with the Company’s quotation, or the Company’s acknowledgement of the Customer’s order, then the Customer must set out that statement or representation in a document to be attached to or endorsed on the Customer’s purchase order and in any such case the Company may confirm, reject or clarify the point and submit a new quotation.
1.5 Clerical errors and omissions are subject to correction by the Company without notice.
2.1 All prices quoted are, unless otherwise stated, exclusive of HST, GST and PST which will be charged at the rate applicable on the date the Products are shipped.
2.2 Prices quoted for Products do not include shipping or transportation fees, which will be included as a separate line item in any quotation or invoice, unless otherwise stated.
2.3 Prices quoted for Products do not include installation, maintenance, repair or other service fees in connection with the Products, which will be included as a separate line item in any quotation or invoice.
2.4 In the event that any alteration or customization of the design or specifications of the Products is requested by the Customer and agreed to by the Company, the Company shall be entitled to make an adjustment to the purchase price for the Products corresponding to such alteration.
3.1 Cancellation of orders will only be agreed to by the Company on the condition that all costs and expenses incurred by the Company up to the time of cancellation and all loss or damage resulting to the Company by reason of such cancellation will be paid forthwith by the Customer to the Company. Cancellation of orders for altered or customized Products will not be accepted.
TERMS OF PAYMENT
4.1 Unless otherwise agreed by the Company in writing, payment shall be due within 30 days after the later of the invoice date, the date the Products were shipped, or the date the Products would have been shipped but for a delay caused by something other than the Company’s own default. The Company shall be entitled to submit its invoice with the delivery of the Products or at any time afterwards, except where delivery has been postponed at the request of or by the default of the
Customer, in which case the Company may submit its invoice at any time after the Products are ready for delivery or would have been ready in the ordinary course but for the Customer’s request or default.
4.2 Where Products are delivered in installments, the Company may invoice each installment separately and the Customer shall pay such invoices in accordance with the conditions contained in section 4.1 above.
4.3 No dispute arising under the CSA, the Terms and Conditions, or any purchase order accepted by the Company or other agreement entered into between the Customer and the Company (collectively, the “Agreement”), or resulting from any delays beyond the reasonable control of the Company, shall interfere with or relieve the Customer of its duty to make prompt payment in full by the payment deadline.
4.4 In the event of default in payment by the Customer, the Company shall be entitled, without prejudice to any other right or remedy, to discontinue manufacturing and/or suspend all further deliveries of Products under the Agreement without notice to the Customer, and to charge interest on any amount outstanding at the rate of 7.5% per annum.
RISK AND TITLE
5.1 Risk for the Products shall pass to the Customer so that the Customer is responsible for all loss, damage or deterioration to the Products:
(i) if the Company delivers the Products by its own transport or in accordance with a specific contractual obligation arranges transport for the Products, at the time when the Products, or a relevant part thereof, arrive at the place of delivery; and
(ii) in all other circumstances, at the time when the Products, or a consignment or other part thereof, leaves the premises of the Company.
5.2 Title to the Products, or any relevant part thereof, shall only pass to the Customer upon the happening of any one of the following events:
(i) the Customer pays to the Company all sums due and payable by it to the Company under the CSA, these Terms and Conditions and the applicable purchase order; or
(ii) the Company delivers to the Customer a notice in writing specifying that title in the Products, or a part thereof, has passed to the Customer.
5.3 The Company may recover any Products for which title has not yet passed to the Customer at any time and the Customer hereby licenses the Company, its officers, employees and agents to enter upon any premises of the Customer for the purpose either of satisfying itself that condition 5.4 below is being compiled with by the Customer or to recover any Products in respect of which title has not yet passed to the Customer.
5.4 Until title to the Products has passed to the Customer, the Customer shall possess the Products as a bailee of the Company and, if the Company so requires, the Customer shall store the Products separately from other goods and shall ensure that the Products are clearly identifiable as belonging to the Company.
6.1 All tests and inspections requested by the Customer will be carried out by the Company at the Company’s premises. The Customer or its authorized agent shall be entitled to observe such tests and inspection provided that this right is exercised within 7 days of notification to the Customer that the Products are ready for inspection or testing. Where the Customer does not, within 3 days after inspection or testing, notify the Company in writing of its lack of satisfaction with the Products, then the Customer shall be conclusively deemed to have accepted the Products and to have agreed that the Products are in full conformity with the Agreement, these Terms and Conditions and any applicable purchase orders or other documents relating to such Products. Any costs incurred by the Company
in carrying out such testing and inspection will be charged to the Customer.
7.1 Standard (non custom) product eligible for return up to 60 days from invoice date. Once shipped, Products may not be returned without the Company’s Return Goods Authorization Number (RMA#). If the Company consents to a return of Products, credit will be provided to the Customer for an amount equal to the price for which the Products were purchased less a deduction of 25% of the purchase price to cover the estimated cost of re-stocking the Products, including clerical and other expenses incurred in connection with such re-stocking. Products returned must be in good condition, adequately packed and identified, and delivered to the Company carriage paid. If, at the prior written request of the Customer, transport of the Products is arranged by the Company, either by its own transport or by third party carrier, the cost of such transport will be deducted from the credit provided to the Customer and the Company shall not be responsible for any loss, damage, or deterioration to the Products that occurs during transit.
SHORTAGES AND DEFECTS APPARENT ON INSPECTION
8.1 The Customer shall have no claim in respect of shortages or defects apparent on visual inspection at the time of delivery unless both of the following conditions are met:
(i) the Customer inspects the Products and gives the Company a written complaint notifying the Company of the defect or shortage (a) within 3 days of its arrival at the Customer’s premises or other agreed upon destination, in the case of a visually apparent defect relating to the product type, quantity and quality, and (b) within 7 days, of its arrival at the Customer’s premises or other agreed upon destination, in the case of other visually apparent defects;
(ii) the Company is given an opportunity to inspect the Products and investigate any complaint before any use of or alteration to or interference with the Products is undertaken by the Customer.
8.2 If a complaint is not made to the Company as herein provided, then the Products shall be deemed to be in full conformity with the Agreement and the Customer shall be bound to pay for the same accordingly.
DEFECTS NOT APPARENT ON INSPECTION
9.1 The Customer shall have no claim in respect of defects not apparent on visual inspection at the time of delivery unless the following conditions are met:
(i) a written complaint notifying the Company of the defect is sent to the Company as soon as reasonably practicable after the defect is discovered, no use is made of the Product after the defect is discovered, and no alteration to or interference with the Product is made before the Company is given an opportunity to inspect the Product; and
(ii) the complaint is sent within 30 days of the date of delivery of the Products or, in the case of an item not manufactured by the Company, within the guarantee period specified by the manufacturers of the applicable Products.
9.2 The Customer shall not be entitled to any claim in respect of any repairs or alterations undertaken by the Customer without the prior specific written consent of the Company nor in respect of any defect arising by reason of fair wear and tear or damage due to accident, neglect or misuse. The Company has no claim in respect of any Products to which alterations have been made without such consent or to which replacement parts not supplied by the Company have been fitted.
9.3 The Company shall not be liable for loss or damage suffered by reason of use of the Products after the Customer becomes aware of a defect or after circumstances which should reasonably have indicated to the Customer the existence of a defect.
9.4 The Company may within 15 days of receiving a written complaint under section 9.1, or within 30 days where the Products are situated outside Canada, inspect the Products. The Customer, if so required by the Company, shall take all steps necessary to enable the Company to inspect the Products, including allowing the Company reasonable entry onto the Customer’s premises.
10.1 Save as otherwise provided in the Agreement, all sections of the Sale of Goods Act (Ontario) are implied into the Agreement.
10.2 In the event that the condition of the Products is such as might or would (subject to these conditions) entitle the Customer to claim damages or to repudiate the Agreement, the Customer shall, before filing a claim for damages or repudiation, ask the Company to repair or replace the affected Products with satisfactory substitute Products free of cost and within a reasonable time. If the Company does so repair or replace the Products, then the Customer shall be bound to accept such repaired or replaced Products and the Company shall be under no liability in respect of any loss or damage whatsoever arising from in the initial delivery of the detective Products or from the delay before the detective Products are repaired or the substitute Products is delivered.
10.3 In the case of Products not manufactured by the Company, the Company gives no assurance or guarantee whatsoever that the sale or use of the Products will not infringe patent, copyright or other industrial property rights of any other person, firm or company.
11.1 Except where the Company is shown to have failed to exercise reasonable care in the manufacture and/or supply of the Products and such failure results in death or personal injury, the Company shall not be liable in respect of any claims arising by reason of death or personal injury.
11.2 The Company shall not be liable in respect of any claims alleging bodily injury, death, or damage to real or tangible personal property caused by the Customer or any or its representatives, officers, employees, agents, successors or assigns using or misusing the Products.
11.3 Under no circumstances whatsoever shall the Company be liable for consequential loss, including removal or rectification work required in connection with installation of repaired or substituted Products, or for loss of profits or damage to property.
11.4 The assumptions and limitations of liability provided in this section 11 shall continue in full force and effect even in the event the Agreement is terminated for any reason.
12.1 Time of delivery is provided by the Company to the Customer as accurately as reasonably possible, but is not guaranteed. The Customer shall have no right to damages or to cancel the order for failure of the Company to meet any delivery time stated, regardless of the reason for such failure.
12.2 The date of delivery shall in every case be dependent upon prompt receipt of all necessary information, final instructions and approvals from the Customer. Alterations by the Customer to the design specifications or quantifies required may result in delay in delivery.
12.3 Failure by the Customer to take delivery of or to make payment in respect of any one or more installments of Products delivered to the Customer shall entitle the Company to treat the entire Agreement as repudiated by the Customer.
12.4 The Company will endeavour to comply with reasonable requests by the Customer for postponement of delivery but shall be under no obligation to do so. Where delivery is postponed for a reason other than default by the Company, the Customer shall pay all costs and expenses including a reasonable charge for storage and transportation occasioned by such delay and full payment for the Products shall be made in accordance with these conditions.
12.5 Any packaging supplied by the Company, unless otherwise expressly agreed, is intended only to provide adequate protection throughout normal conditions of transit of usual duration.
13.1 The Customer shall be solely responsible for ensuring that all drawings, information, advice and recommendations given to the Company either directly or indirectly by the Customer or by the Customer’s agents, servants, consultants or advisors are accurate, correct and suitable. Examination or consideration by the Company of such drawings, information, advice or recommendations shall in no way limit the Customer’s responsibility for their accuracy and suitability unless the Company specifically agrees in writing to accept responsibility.
13.2 The Customer shall indemnify the Company against all actions, claims, demands, costs, proceedings, charges and expenses arising from or incurred by reason of the manufacture of Product to the drawings or specifications of the Customer where such drawings or specifications are at fault or where it is alleged that they involve an infringement of patent, trade mark, registered design, design right, design copyright or other exclusive right.
DESIGN AND SPECIFICATION
14.1 The Company’s designs are subject to progressive improvements and the Company reserves the right to make any alteration to the standard specification of the Products as the Company deems fit without notice. The accuracy of details in illustrations and other data supplied to the Customer with respect to weight and measurements are not guaranteed, but rather are given by way of identification only. Such descriptions shall not render the Agreement a sale by description. No such information or data shall form part of the Agreement.
15.1 All drawings, documents, confidential records, computer software and other information supplied by the Company are supplied on the express understanding that copyright is reserved to the Company and that the Customer shall not, without the written consent of the Company, either give away, loan, exhibit or display any such drawings, documents, records software or other information or extracts there from or copies thereof or use them in any way except in connection with the Products in respect of which they are issued.
16.1 If the Customer shall become bankrupt, subject to proceedings under the Bankruptcy and Insolvency Act or the Companies’ Creditors Arrangement Act, deemed unable to pay its debts as they become due, or a resolution is passed or proceedings are commenced for the administration or liquidation of
the Customer, other than for a voluntary winding-up for the purpose of reconstruction or amalgamation, or if a receiver or manager is appointed of all or any part of the Customer’s assets or undertaking, then the Company shall be entitled to cancel the Agreement in whole or in part by notice in writing without prejudice to any right or remedy accruing to the Company.
17.1 Neither party shall be liable for any delay, loss, or damage caused wholly or in part by any act of God; governmental restriction, condition, or control; or by reason of any act done or not done pursuant to a trade dispute, whether such trade dispute involves its employees or not; or by reason of any other act, matter, or thing beyond its reasonable control, including failure by the other party to carry out the provisions of the Agreement
CONSUMER PROTECTION ACT
18.1 In circumstances where the Company supplies parts or products to the Customer for incorporation with, or use ancillary to, any composite products to be produced, manufactured, processed or supplied by the Customer, the Customer shall indemnify, reimburse, and compensate the Company for all losses and damages, including costs, expenses and charges for legal actions in which the Company may be involved, that the Company may incur in the event that any claim or claims are made against the Company pursuant to legislation relating to the said composite products of the Customer or products in circumstances in which the part or product supplied by the Company was either (i) not the defective part of the said composite product; (ii) was only rendered the defective part or became a
defective product by reason of actions or omissions of the Customer; (iii) was only rendered the detective part or became a defective product by reason of instructions or warnings given by the Customer or other supplier; or (iv) was supplied by the Company in accordance with a specification and/or design either stipulated or approved by the Customer. For the purposes of this condition the word “defective” shall be interpreted in accordance with the definition contained in the applicable legislation.
18.2 The Customer hereby acknowledges that it is under a duty to pass on to its customers, where appropriate, all instructions, information, and warnings supplied to it by the Company with respect to the Product.
19.1 Any and all agreements existing between the Company and the Customer shall be governed and interpreted by, and interpreted and enforced in accordance with, the laws of the Province of Ontario and the laws of Canada applicable in that province, excluding the choice of law rules of that province.