S&D CHEMICALS LIMITED TERMS AND CONDITIONS OF SALE
| 1 | INTERPRETATION | ||
| 1.1 | The definitions and rules of interpretation set out below
apply in these terms and conditions. |
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| 1.2 | A reference to a particular law is a reference to it as it
is in force for the time being taking account of any amendment, extension,
application or re-enactment and includes any subordinate legislation for
the time being in force made under it. |
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| 1.3 | Words in the singular include the plural and in the plural
include the singular. |
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| 1.4 | Condition headings do not affect the interpretation of these conditions. | ||
| 2 | APPLICATION OF TERMS | ||
| 2.1 | Subject to any variation under 2.2 the Sales Contract shall
be on these terms and conditions to the exclusion of all other terms and
conditions (including any terms or conditions which the Purchaser purports
to apply under any purchase order, confirmation of order, specification
or other document or contract). |
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| 2.2 | These conditions apply to all the Company’s sales and
any variation to these conditions and any representations about the Goods
shall have no effect unless expressly agreed in writing and signed by a
director of the Company. The Purchaser acknowledges that it has not relied
on any statement, promise or representation made or given by or on behalf
of the Company which is not set out in the Contract. Nothing in these conditions
shall exclude or limit the Company's liability for fraudulent misrepresentation. |
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| 2.3 | Each order or acceptance of a quotation for Goods by the Purchaser
from the Company shall be deemed to be an offer by the Purchaser to buy
Goods subject to these conditions. |
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| 2.4 | No order placed by the Purchaser or quotation given by the
Company shall be deemed to be accepted by the Company until a signed Sales
Contract is issued by the Company or (if earlier) the Company delivers the
Goods to the Purchaser. |
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| 2.5 | The Purchaser shall ensure that the terms of its order set out in the Sales Contract and any applicable specification are complete and accurate. | ||
| 3 | DESCRIPTION | ||
| 3.1 | The quantity and description of the Goods shall be as set
out in the Company’s Sales Contract. |
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| 3.2 | All samples, drawings, specifications and advertising issued by the Company and any illustrations as contained in the Company’s catalogues or brochures or website are purely descriptive and not intended to form any part of the Contract. | ||
| 4 | DELIVERY | ||
| 4.1 | Unless otherwise agreed between the parties in writing, delivery
of the Goods shall be made by the Company as specified and in accordance
with the provisions in the Sales Contract. |
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| 4.2 | Acceptance of the Goods for delivery by the Purchaser or its
agent shall constitute unequivocal acceptance of the Sales Contract on these
terms and conditions. |
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| 4.3 | Any dates specified by the Company in the Sales Contract for
the delivery of the Goods shall be of the essence and if no dates are specified
in the Sales Contract delivery shall be within a reasonable time. |
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| 4.4 | Notwithstanding anything in these conditions to the contrary (but subject to condition 9) the Company shall not be liable for any incidental, direct, indirect, special or consequential loss (all of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses arising out of or in connection with the Contract in each case howsoever caused including without limitation by misrepresentation (whether made prior to and/or in this Agreement) negligence, other tort, breach of contract, breach of statutory duty or any claims arising under an indemnity caused directly or indirectly by any delay in the delivery of the Goods. | ||
| 4.5 | If for any reason the Purchaser fails to accept delivery of
any of the Goods when they are ready for delivery, or the Company is unable
to deliver the Goods on time because the Purchaser has not provided appropriate
instructions, documents, licences or authorisations: |
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| 4.5.1 |
risk in the Goods shall pass to the Purchaser; | ||
| 4.5.2 |
the Goods shall be deemed to have been delivered; and | ||
| 4.5.3 |
the Company may store the Goods until delivery, whereupon the Purchaser shall be liable for all related costs and expenses (including, without limitation, storage and insurance). | ||
| 4.6 | The Purchaser shall provide at its expense adequate and appropriate
equipment and manual labour for loading or unloading (as appropriate) the
Goods. |
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| 4.7 | The Company may deliver the Goods by separate instalments.
Each separate instalment shall be invoiced and paid for in accordance with
the provisions of the Sales Contract. |
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| 4.8 | Claims for shortages before risk passes, must be made in writing
within seven days of receipt of the Goods failing which proper delivery
shall be presumed conclusively to have been made. |
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| 5 | NON-DELIVERY | ||
| 5.1 | The quantity of any consignment of Goods as recorded by the
Company upon despatch from such third party location as may be specified
in the Sales Contract shall be conclusive evidence of the quantity received
by the Purchaser on delivery unless the Purchaser can provide conclusive
evidence proving the contrary. |
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| 5.2 | The Company shall not be liable for any non-delivery of Goods
(even if caused by the Company’s negligence) unless the Purchaser
gives written notice to the Company of the non-delivery within seven days
of the date when the Goods would in the ordinary course of events have been
received. |
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| 5.3 | Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or refunding the the price of the Goods or issuing a credit note at the pro rata Sales Contract rate against any invoice raised for such Goods. | ||
| 6 | RISK/TITLE | ||
| 6.1 | The Goods are at the risk of the Purchaser from the time of
delivery. |
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| 6.2 | Ownership of the Goods shall not pass to the Purchaser until
the Company has received in full (in cash or cleared funds) all sums due
to it in respect of: |
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| 6.2.1 | the Goods; and |
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| 6.2.2 | all other sums which are or which become due to the Company from the Purchaser
on any account. |
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| 6.3 | Until ownership of the Goods has passed to the Purchaser,
the Purchaser shall hold the Goods on a fiduciary basis as the Company’s
bailee. |
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| 6.4 | The Purchaser’s right to possession of the Goods shall terminate immediately if: | ||
| 6.4.1 | the Purchaser has a bankruptcy order made against him or makes an arrangement
or composition with his creditors, or otherwise takes the benefit of any
statutory provision for the time being in force for the relief of insolvent
debtors, or (being a body corporate) convenes a meeting of creditors (whether
formal or informal), or enters into liquidation (whether voluntary or compulsory)
except a solvent voluntary liquidation for the purpose only of reconstruction
or amalgamation, or has a receiver and/or manager, administrator or administrative
receiver appointed of its undertaking or any part thereof, or documents
are filed with the court for the appointment of an administrator of the
Purchaser or notice of intention to appoint an administrator is given by
the Purchaser or its directors or by a qualifying floating charge holder
(as defined in the Bankruptcy and Insolvency Act. R.S.C, 1985, c. B-3, s.
1; 1992, c. 27, s. 2. ), or a resolution is passed or a petition presented
to any court for the winding-up of the Purchaser or for the granting of
an administration order in respect of the Purchaser, or any proceedings
are commenced relating to the insolvency or possible insolvency of the Purchaser;
or |
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| 6.4.2 | the Purchaser suffers or allows any execution to be levied on its property
or obtained against it, or fails to observe or perform any of its obligations
under the Sales Contract or any other contract between the Company and the
Purchaser, or is unable to pay its debts as they become due or the Purchaser
ceases to carry on business ; or |
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| 6.4.3 | the Purchaser encumbers or in any way charges any of the Goods. |
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| 6.5 | Where the Purchaser’s right to possession has terminated,
the Company may require the Purchaser, (at the Purchaser’s expense),
to deliver immediately the Goods to the Company |
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| 6.6 | In addition to the obligation under clause 6.5, the Purchaser
grants the Company, and its agents and employees, an irrevocable licence
to enter any premises on reasonable notice where the Goods are or may be
stored in order to inspect them, or, where the Purchaser’s right to
possession has terminated, to recover them. |
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| 6.7 | On termination of the Contract, howsoever caused, the Company’s (but not the Purchaser’s) rights contained in this condition 6 shall remain in effect. | ||
| 7 | PRICE | ||
| 7.1 | Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Sales Contract . | ||
| 7.2 | The Company reserves the right to vary prices at any time
at its discretion, including additional costs incurred in exchange rate
and currency movements, and additional costs in packing or transport. The
Company also reserves the right to increase prices to recover any additional
costs arising from variation or delay caused by the Purchaser’s instructions
or failure of the Purchaser to give the Company adequate information or
instruction. |
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| 7.3 | The Company reserves the right to impose a minimum order quantity or handling charge for any Goods or services supplied. | ||
| 8 | PAYMENT | ||
| 8.1 | Payment of the price for the Goods (including GST, or HST
where applicable) and any additional transport, insurance, packaging and/or
additional costs shall be set out in full in the Sales Contract. |
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| 8.2 | Time for payment shall be of the essence. |
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| 8.3 | No payment shall be deemed to have been received until the
Company has received cleared funds. |
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| 8.4 | The Purchaser shall make all payments due under the Sales
Contract in full without any deduction whether by way of set-off, counterclaim,
discount, abatement or otherwise unless the Purchaser has a valid court
order requiring an amount equal to such deduction to be paid by the Company
to the Purchaser. |
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| 8.5 | If the Purchaser fails to pay the Company any sum due pursuant to the Sales Contract, the Purchaser shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 5% above the Bank of Canada base rate, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Interest Act. R.S.C., c. I-18, s. 1. . | ||
| 9 | QUALITY | ||
| 9.1 | The Company warrants that (subject to the other provisions
of these conditions) the Goods shall be of satisfactory quality within the
meaning of the Sale of Goods Act, R.S.O. 1990 c.S.1. . |
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| 9.2 | Subject to condition 9.1 no warranty is given that the Goods
are suitable for a particular or special purposes or for use in connection
with any equipment or other product or item unless expressly given in writing
by the Company in the Contract and in particular where the Goods are incorporated
or form part of another product or contain or hold other products or substances
the Company shall not be liable for any loss or damage to such other product
or substance arising out of any defect or fault in the Goods. |
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| 9.3 | The Company shall not be liable for a breach of condition
9.1 unless: |
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| 9.3.1 | the Purchaser gives written notice of the defect to the Company,
and, if the defect is as a result of damage in transit, to the carrier,
within seven days of the time when the Purchaser discovers or ought to have
discovered the defect; and |
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| 9.3.2 | the Company is given a reasonable opportunity after receiving
the notice of examining such Goods to confirm or have verified the defect. |
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| 9.4 | The Company shall not be liable for a breach of the warranty
in condition 9.1 if: |
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| 9.4.1 | the Purchaser makes any further use of such Goods after giving
such notice; or |
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| 9.4.2 | the defect arises because the Purchaser failed to follow the
Company’s instructions as to the storage, or use of the Goods or (if
there are none) good trade practice. |
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| 9.5 | Subject to conditions 9.2, 9.3 and 9.4, if any of the Goods
do not conform with the warranty in condition 9.1 the Company shall at its
option replace such Goods or refund the price of such Goods or issue a credit
note at the pro rata Sales Contract rate provided that, if the Company so
requests, the Purchaser shall return the Goods or the part of such Goods
which is defective to the Company. |
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| 9.6 | Where Goods are returned to the Company the Purchaser shall ensure that the Goods are returned to the Company free from hazard, including biological, chemical or radioactive. The Company reserves the right to refuse to accept Goods which in its view presents a hazard or may infringe legislation, or is without a signed declaration that the Goods are free from any contamination or infection. | ||
| 10 | DEFECTS | ||
| 10.1 | The purchaser must notify the Company in writing within seven
days of delivery if the Goods: |
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| 10.1.1 | do not meet the specification in the Sales Contract; or |
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| 10.1.2 | are contaminated; or |
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| 10.1.3 | are delivered in packaging which is dirty, damaged or not
appropriately marked; or |
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| 10.1.4 | are delivered with incorrect documentation. |
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| 10.2 | In each case (as appropriate) the Purchaser must also provide
the following: |
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| 10.2.1 | a quality report detailing the discrepancies with the specification; |
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| 10.2.2 | photographic evidence if the Goods are contaminated; |
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| 10.2.3 | visual proof where the packaging of the Goods is dirty, damaged
or wrongly marked; and/or |
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| 10.2.4 | copies of the incorrect documentation supplied with the Goods. |
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| 10.3 | Subject to Clause 7.2 the Company shall consider the defect
(as the case may be) and will at its option either: |
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| 10.3.1 | arrange for the replacement of the Goods (in part or all as
appropriate); or |
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| 10.3.2 | provide the correct documentation; or |
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| 10.3.3 | refund the price of the goods, or issue a credit note, at
the pro rata Sales Contract rate. |
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| 10.4 | Where there is dispute as to whether the Goods are defective the issue will be referred to an independent laboratory whose decision will be final and whose costs shall be born by the party whose opinion as to defect is found to be in error. | ||
| 11 | LIMITATION OF LIABILITY | ||
| 11.1 | Subject to condition 4, condition 5 and condition 9, the following
provisions set out the entire financial liability of the Company (including
any liability for the acts or omissions of its employees, agents and sub-contractors)
to the Purchaser in respect of: |
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| 11.1.1 | any breach of these conditions; and |
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| 11.1.2 | any use made or resale by the Purchaser of any of the Goods,
or of any product incorporating any of the Goods; and |
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| 11.1.3 | any representation, statement or tortious act or omission
including negligence arising under or in connection with the Contract. |
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| 11.2 | All warranties, conditions and other terms implied by statute
or common law (save for the conditions implied by the Sale of Goods Act)
are, to the fullest extent permitted by law, excluded from the Sales Contract. |
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| 11.3 | Nothing in these conditions excludes or limits the liability
of the Company: |
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| 11.3.1 | for death or personal injury caused by the Company’s
negligence; or |
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| 11.3.2 | under section 2(3), Consumer Protection Act, 2002; or |
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| 11.3.3 | for any matter which it would be illegal for the Company to
exclude or attempt to exclude its liability; or |
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| 11.3.4 | for fraud or fraudulent misrepresentation. |
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| 11.4 | Subject to condition 9.1 and condition 9.2: |
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| 11.4.1 | the Company’s total liability in contract, tort (including
negligence or breach of statutory duty), misrepresentation, restitution
or otherwise, arising in connection with the performance or contemplated
performance of the Sales Contract shall be limited to the Sales Contract
price; and |
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| 11.4.2 | the Company shall not be liable to the Purchaser for any pure economic loss, loss of production, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract. | ||
| 12 | DUTY OF CARE | ||
| 12.1 | The Purchaser has a responsibility to ensure all Goods supplied
are stored and thereafter used responsibly and in accordance with all the
appropriate legislative requirements and recommendations (which shall include
but not be limited to the Purchaser maintaining the correct and appropriate
licences and authorisations to import, purchase stock, distribute, process,
promote and supply the Goods). The Purchaser shall take all appropriate
precautions to ensure the safe and suitable installation, handling and use
of the Goods. The Purchaser shall be responsible for taking all steps necessary
to eliminate or reduce the risk to health and/or safety arising out of,
possession and use of the Goods. |
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| 12.2 | Subject to condition 9.1 the Company gives no warranty as to the suitability or performance of the Goods and the Purchaser shall be deemed to have satisfied itself as to the suitability of the Goods. | ||
| 13 | INDEMNITY | ||
| The Purchaser shall not use or deal with the Goods so as to infringe, interfere with or weaken any rights of the Company under or in respect of any patents, processes, proprietary information, trademarks, registered designs, logos, artwork or copyright for or in connection with the Goods. The Company shall have no liability for the infringement of the rights of any third party arising from the use of the Goods or the use of the Goods in combination with other goods, trademarks or processes not supplied by the Company. | |||
| 14 | EXPORT TERMS | ||
| 14.1 | The latest conditions of Incoterms apply to the Sales Contract. |
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| 14.2 | In these terms and conditions "Incoterms" means
the international rules for interpretation of trade terms of the International
Chamber of Commerce as in force at the date of when the Contract is made.
Unless otherwise required any term or expression which is defined in or
given a particular meaning by the provision of Incoterms shall have the
same meaning as in this these terms and conditions or the Sales Contract
but if there is any conflict between the provisions of Incoterms and this
Contract the latter shall prevail. |
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| 14.3 | The Purchaser shall be responsible for complying with any legislation or regulations governing the importation of the goods into the country of destination and for the payment of any duties on them. | ||
| 15 | TERMINATION | ||
| The Company shall have the right, without prejudice to its other rights, to cancel or suspend the performance of the Contract or any part thereof should the Purchaser be in default of any of its obligations under the Contract or should there be any amounts due and unpaid by the Purchaser to the Seller whether in respect of the Purchaser’s obligations under the Contract or any other contract. | |||
| 16 | FORCE MAJEURE | ||
| The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Purchaser (without liability to the Purchaser) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 6 months, the Purchaser shall be entitled to give notice in writing to the Company to terminate the Contract. | |||
| 17 | GENERAL | ||
| 17.1 | Each right or remedy of the Company under the Contract is
without prejudice to any other right or remedy of the Company whether under
the Contract or not. |
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| 17.2 | If any provision of the Contract is found by any court, tribunal
or administrative body of competent jurisdiction to be wholly or partly
illegal, invalid, void, voidable, unenforceable or unreasonable it shall
to the extent of such illegality, invalidity, voidness, voidability, unenforceability
or unreasonableness be deemed severable and the remaining provisions of
the Contract and the remainder of such provision shall continue in full
force and effect. |
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| 17.3 | Failure or delay by the Company in enforcing or partially
enforcing any provision of the Contract shall not be construed as a waiver
of any of its rights under the Contract. |
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| 17.4 | Any waiver by the Company of any breach of, or any default
under, any provision of the Contract by the Purchaser shall not be deemed
a waiver of any subsequent breach or default and shall in no way affect
the other terms of the Contract. |
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| 17.5 | The parties to the Contract do not intend that any term of
the Contract shall be enforceable by any person that is not a party to it. |
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| 17.6 | The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by the Laws of the Province of Ontario, Canada. | ||
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