Standard Terms & Conditions for the Sale of Goods and/or Services
The following terms and conditions will apply to any sale of goods or services by Vicwest, a division of Vicwest Corporation (“Vicwest”), and acceptance of these terms and conditions is an express condition of such sale. These Standard Terms and Conditions are applicable to all Purchase Orders, quotations, schedules, orders or ancillary agreements. The Buyer will be deemed to have full knowledge of, and to have accepted, these terms and conditions if any goods or services are requested, ordered, or delivered to and accepted by the Buyer from Vicwest. Any term or condition or standard of performance different from or in addition to these Standard Terms and Conditions, whether set forth on a Purchase Order or otherwise proposed by the Buyer, must be agreed to , in writing, by Vicwest in advance. Vicwest hereby expressly objects to and rejects any other terms and conditions proposed by the Buyer by way of Purchase Order or otherwise, which are different from or in addition to these Standard Terms and Conditions unless accepted in advance by Vicwest in writing.
1. DELIVERY/RISK OF LOSS/TRANSPORTATION/INSURANCE: Where delivery is to be made by Vicwest, customary methods of transportation/shipment, as selected by Vicwest, and reasonable commercial efforts will be used to ship Goods. The Buyer may request that special methods of transportation/shipment/delivery be used at Buyer’s expense if reasonable notice is given by the Buyer to Vicwest prior to shipment. The Goods will be deemed to be delivered and Vicwest shall not be responsible for loss or damage resulting from transportation or shipment at such time as possession of the Goods is given to a carrier or transportation company operating on behalf of the Buyer.
Delivery schedules and dates are approximate and are based on prevailing market or other conditions applicable at the time of order and on prompt receipt by Vicwest of any specifications and other information required. Vicwest may extend delivery schedules without liability where required or, at its option, cancel Buyer’s order in full or in part without liability other than to return any deposit or prepayment which is unearned by reason of the cancellation. Vicwest has the right to make partial deliveries when Vicwest reasonably deems appropriate.
Except as otherwise expressly stipulated in writing, prices for goods are F.O.B. Vicwest’s manufacturing location and include packaging costs, but do not include freight or insurance charges. Buyer will be responsible for all such freight and insurance charges, in addition to the sale price specified herein. Vicwest is under no obligation to obtain insurance for the Buyer covering Goods in transit to the Buyer.
All transportation charges in effect at the time of shipment shall apply. Vicwest expressly reserves the right to charge the Buyer an additional set transportation charge or freight fee over and above regular transportation charges on any and all orders below a minimum dollar value as set from time to time by Vicwest.
2. QUOTATIONS: Except as otherwise expressly stipulated in writing, Vicwest’s quotation will be void unless accepted by the Buyer within 30 days from the date of quotation. Any additional work required that is beyond the scope of Vicwest’s quotation will be charged as additional work after notification to the Buyer. All quotations are based on plans, specifications and information provided by the Buyer. Any alteration in such plans, specifications or information may result in a revision to the quoted price.
3. TERMS OF SALE/PRICES/TAXES: All orders are subject to the prior approval of a Vicwest Sales Manager and the Vicwest Credit Department and are predicated on the completion of such forms and submitted in such format as may be required by Vicwest.
Prices shall be those in effect at the time of shipment. Prices are subject to change at any time without notice due to market/currency fluctuations and other factors and are subject to correction for error at any time.
Vicwest reserves the right to invoice all orders at prices in effect at the time of shipment unless a quotation issued by Vicwest specifically stipulates otherwise. If a price has increased, Vicwest will advise before proceeding with an order where the Buyer has specified a different price. Any costs omitted or corrections on the Buyer’s invoice will be invoiced/credited at a later point following shipping.
Unless otherwise indicated, prices are based on the performance of services during normal business hours and Vicwest reserves the right to make additional charges to the extent that the Buyer requires services to be performed outside of normal business hours.
Vicwest’s prices do not include any Federal, Provincial, State or local taxes/fees or any shipping costs, custom, export, import, wharfage or associated dues or duties; and any such taxes or fees now in effect or hereafter levied will be in addition to such prices and added to the invoice total to be paid by the Buyer. The Buyer agrees to defend, indemnify and hold Vicwest harmless from and against any and all such taxes and fees, including, without limitation, any cost, expense, attorney’s fees, interest or penalties assessed against or incurred by Vicwest as a result of the Buyer’s failure to pay such taxes or fees.
4. TERMS OF PAYMENT: Terms of payment shall be net 30 days from the date of invoice.
Notwithstanding any provision contained herein, each shipment of Goods by Vicwest shall be deemed a separate and independent transaction and payment therefore shall be made accordingly.
If at any time Vicwest, in its sole discretion, deems the Buyer’s credit to be unsatisfactory or in any way impaired, Vicwest reserves the right, among other remedies, to terminate this agreement or any Purchase Order and/or suspend or withhold further deliveries and/or to require payment either by Cash or Credit Card with the Order or Bank draft or require, in advance, such other satisfactory security or guarantee that invoices will be paid promptly when due prior to releasing any order and/or may declare any outstanding unpaid amount to be due and owing immediately. Unless otherwise specified, payment by the Buyer shall not be contingent upon payment by a third party.
Vicwest reserves the right to charge interest on all overdue balances at a rate of one and one-half percent (1.5%) per month compounded (19.56% annually) until the date payment is received in full. Interest is charged from the invoice date onwards if payment is not received within 30 days.
5. APPROPRIATENESS OF GOODS: Product durability is sensitive to local conditions, the method of installation and the nature of the use for which the product is applied. It is therefore the Buyer’s responsibility to ensure that the Goods specified for quotation purposes and/or ordered are the appropriate products given the particular conditions of use and application. Vicwest shall not be responsible for any damage resulting to the Goods or to the building upon which the Goods are applied arising from an inappropriate choice of product, improper installation, improper maintenance or any other condition outside of the control of Vicwest.
6. TOLERANCES AND VARIATIONS: The Goods being sold to the Buyer will be produced in accordance with Vicwest’s standard practices. All Goods, however, including those produced to meet an exact specification, will be subject to: tolerances and variations consistent with good manufacturing practices in regard to dimension, weight, gauge, composition, flatness, mechanical properties and quality; deviations from tolerances and variations consistent with practical commercially-acceptable testing and inspection methods; and to a plus or minus deviation in quantity based on Vicwest’s regular mill practices.
7. ACCEPTANCE OF GOODS: Vicwest has taken all reasonable precautions to ensure that the products it sells are free from latent defects, errors, damage or shortages.
If the Goods are found to contain a latent defect, Vicwest undertakes to replace the Goods or, at its option, to credit the Buyer for the price of the product or reimburse the Buyer for the price of the Goods, an adjustment being made in either case for the use which the Buyer has had of the Goods since their purchase. Vicwest shall not be liable in any case for labour, handling or other costs or damages.
The Buyer shall notify Vicwest of any latent defects, errors, damages or shortages, in writing, within thirty (30) days after delivery. The written notice must state the applicable Sales Order Number and must be accompanied by any documents or other papers that substantiate the alleged defects, errors, damages or shortages. If the Buyer fails to provide Vicwest with such written notice, documents or papers and the applicable Sales Order Number, all within the required time, the Buyer will be deemed to have waived such defect, error, damage or shortage and to have accepted the Goods as delivered.
8. OWNERSHIP AND TITLE TO GOODS: Except as otherwise expressly stipulated in writing, title to the goods supplied by Vicwest will not pass to the Buyer upon delivery to the Buyer but will remain with Vicwest until all payments for the Goods and for any Services provided to the Buyer have been paid in full. Such Goods will be and will remain personal or moveable property, notwithstanding any attachment to real property. If default is made in any of the payments herein, the Buyer agrees that Vicwest may retain all payments which have been made on account of the purchase price as liquidated damages, and Vicwest will be free to enter the premises where the Goods may be located and remove them as Vicwest’s property, without prejudice to Vicwest’s right to recover any further expenses or damages Vicwest may suffer by reason of such non-payment. This retention of title constitutes a security interest in the goods securing payment of all debts due to Vicwest by the Buyer and may be enforced by any remedy available at law to secured parties in similar circumstances. Vicwest is authorized to register such notices or other documentation as may be necessary to fully evidence, effect or perfect such security interest.
9. CHANGE OR CANCELLATION: Orders for Goods and/or Services accepted by Vicwest are not subject to change or cancellation by the Buyer, except with Vicwest’s written consent.
The Buyer must provide a minimum of four (4) working days prior notice in order to re-schedule planned production, deliveries or pick-up of Goods.
If Vicwest consents to a change or cancellation of an accepted Order, then Vicwest may, at its sole discretion and upon prior notification to the Buyer, charge to the Buyer a change/cancellation/re-scheduling fee to cover administrative expenses. In addition, Vicwest reserves the right on any change, cancellation, re-scheduling or termination to charge the Buyer with Vicwest’s reasonable resulting costs including, without limitation, reasonable costs for: demurrage or other required storage fees in respect of the Goods; expenses already incurred or commitments made with respect to any labour and/or any materials purchased; Vicwest’s usual overhead and reasonable profit; and cancellation/restocking charges from Vicwest’s suppliers.
Vicwest may immediately terminate this agreement without liability to the Buyer in the event of the Buyer’s bankruptcy or insolvency or if a receiver or trustee or similar official is appointed in respect of the Buyer or in respect of all or any significant portion of its business or assets or if Buyer repudiates or breaches any of the terms of this agreement or if Buyer is unable to provide, promptly upon request, a guarantee required by Section 4 herein.
10. RETURN OF GOODS: No goods may be returned to Vicwest without Vicwest’s prior written consent, and Vicwest reserves the right to decline any such return of goods. Goods will be considered for return only if they are in their original condition and are being returned by the original Buyer. Any return of goods consented to by Vicwest will be made only for credit and may be subject to a handling/restocking charge. Goods shipped in error are not subject to this policy.
11. FORCE MAJEURE: Vicwest will not be responsible or liable for any loss or damage directly or indirectly incurred by the Buyer for any default or delay in production or delivery of Goods resulting from any cause(s) beyond the reasonable control of Vicwest, including, without limitation: acts of God; war, terrorism, insurrection, riot or the order or injunction of any civil or military authority; fire, flood, wind, ice storm or other harsh weather, natural disasters, or acts of the elements; delays in transportation; unavailability of equipment, materials or power; accidents, sabotage, lock-outs, strikes or labour disputes or shortages; accidents to, breakdowns or mechanical failure of machinery or equipment; difficulties in obtaining raw materials; or the failure of Vicwest’s suppliers to meet their delivery promises. If Vicwest’s performance of this agreement is delayed, interfered with or prevented by any such cause, Vicwest shall be relieved from further responsibility whether or not such cause was operative at the time of making this agreement. If Vicwest elects to complete its performance of this agreement, the time for performance by Vicwest shall be extended for such period as may be necessary to enable Vicwest to make delivery after such cause has been removed.
12. LIMITED WARRANTY AND DISCLAIMER OF WARRANTIES: In the case of Goods sold by Vicwest with a separate written warranty, that warranty shall apply. Otherwise, Vicwest warrants only that: (i) Goods shall be manufactured in accordance with Vicwest’s specifications; and (ii) Services shall be performed as specified.
The foregoing warranty and any separate written warranty will not apply to and Vicwest makes no warranties with respect to: (a) any goods subjected to abuse, misuse, misapplication, neglect, alteration or accident; to improper or incorrect installation or maintenance; or to abnormal conditions of use, temperature, moisture, dirt or corrosive material; and (b) materials, parts, goods or other components that are manufactured by a party other than Vicwest.
THE WARRANTY REFERENCED ABOVE IS THE ONLY WARRANTY PROVIDED BY VICWEST AND IS IN PLACE OF AND TO THE EXCLUSION OF ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY EXCLUDED.
The Buyer agrees to provide Vicwest with written notice of any breach of the above limited warranty within thirty (30) days after the Buyer discovers, or should have discovered, the alleged breach. Time is of the essence herein, and the Buyer’s failure to provide written notice to Vicwest within the required time of any alleged breach of the foregoing warranty will release and discharge Vicwest from any obligation or liability for the breach of warranty. The foregoing warranty extends only to the original Buyer and to no other person.
No statement or recommendation made or assistance given by Vicwest or its representatives, either oral or in any literature or other documentation, to the Buyer, its customers or any other person in connection with the purchase of the Goods or Services shall constitute a waiver by Vicwest of any provision hereof or affect Vicwest’s liability as herein defined; and no such statement, recommendation or assistance that is not expressly required by the provisions of this agreement shall subject Vicwest to any liability of any nature whatsoever.
13. BUYER’S REMEDIES/LIMITATION OF LIABILITY: In the event of any material breach of the above warranty, Vicwest will, at its sole option, credit the Buyer’s account or repair defective Goods or furnish replacement Goods, all subject to the Buyer providing written notice of the alleged breach within the time required. The remedies set forth herein shall be the sole and exclusive remedies available to the Buyer so that Vicwest’s credit of Buyer’s account or repair or replacement is a fulfilment of all of Vicwest’s obligations. Vicwest shall not be liable for any consequential or incidental damages of any kind, nor under any circumstances shall Vicwest be liable for damages beyond the price of the goods purchased by Buyer, whether in agreement, in tort or under any warranty or other use. If required by Vicwest, the goods alleged to be defective will be returned to Vicwest, at its direction and expense, for examination. No goods are to be returned to Vicwest without its prior written authorization. If Vicwest discovers that any goods returned are not covered by the foregoing warranty, Vicwest reserves the right to charge the Buyer for all transportation costs and expenses incurred by Vicwest in examining, processing or handling such goods. Any controversy or claim arising out of or relating to this agreement or the breach hereof, must be commenced within two years after the cause of action was accrued.
14. BUYER’S AGREEMENT TO DEFEND: If any goods are manufactured or sold by Vicwest to meet Buyer’s instructions, specifications, or any other requirements and such goods are not included among Vicwest’s standard catalogue items offered, the Buyer agrees to defend, indemnify and hold Vicwest harmless from and against and all loss, cost, damage, liability or expense (including, without limitation, and penalties or punitive damages, attorneys’ fees and expenses and costs of suit) arising out of the manufacture, sale or use of such goods, including, without limitation, claims of actual or alleged infringements or any patent or copyright, or any actual or alleged unfair competition resulting from similarity in design, trademark or appearance.
15. TRADEMARKS: The purchase of Goods or Services from Vicwest shall not entitle the Buyer, without the express written permission of Vicwest and upon terms as set out by Vicwest, to use, register or otherwise identify the Buyer or its business with the name, trademark, service mark or other identity of Vicwest. Should the Buyer violate this provision, Vicwest may avail itself of all remedies provided for by law or in equity, including, without limitation, injunctive relief.
16. LIMITATION OF LIABILITY: Notwithstanding any other provision of this agreement or any applicable law, neither Vicwest nor any of its directors, officers, employees, agents, representatives and assigns nor any of their respective heirs, executors, administrators, legal personal representatives, successors and assigns, will be liable to the Buyer for any indirect, special, consequential, incidental or punitive damages, losses, expenses or claims (including, without limitation, damages for or in relation to loss of use of equipment or facilities, lateness in delivery, loss of revenue or profits, downtime costs, the cost of capital or of substitute facilities, equipment or services or the cost of replacement power) directly or indirectly arising from or relating to or a consequence of any breach of this agreement (fundamental or otherwise) or of any warranty, provision or indemnity contained herein or from any act or omission of any such persons which may give rise to legal liability (whether in negligence or other tort, strict liability, agreement or under any other theory of legal liability).
In no event will the aggregate liability of Vicwest in respect of this agreement or otherwise exceed the aggregate price of the faulty or defective goods or services provided hereunder. In any event, all liability of Vicwest and such persons will terminate upon the expiry of the applicable warranty period provided by Vicwest. The provisions of this Section and of all other sections of this agreement providing for limitation of or protection against liability of Vicwest and/or any of its directors, officers, employees, agents, representatives and assigns and/or any of their respective heirs, executors, administrators, legal personal representatives, successors and assigns, will survive any termination, cancellation or expiration of this agreement.
Vicwest will not be liable to the Buyer for any damage caused by Vicwest to the Buyer’s property to the extent that such damage is covered by the Buyer’s insurance. In no event will the total liability of Vicwest exceed the total amount paid for the Goods provided and/or for Services performed under this agreement. The Buyer acknowledges that this limitation is reasonable and that the agreement price has been negotiated with this limitation in mind.
17. NON-WAIVER: No change, modification or waiver of any provision of these Standard Terms and Conditions of Sale shall be valid or binding unless it is accepted by Vicwest. The failure of one party at any time to require performance by the other party of any provision of this agreement will in no way affect the right to require such performance at any time thereafter, nor will the waiver of one party of a breach of any provision of this agreement by the other party constitute a waiver of any succeeding breach of the same or any other provision and will in no way affect, limit or waive such party’s right at any time to enforce strict compliance with any provision of these Standard Terms and Conditions of Sale.
18. ENTIRE AGREEMENT: These Standard Terms and Condition of Sale represent the entire agreement between Vicwest and the Buyer with respect to the matters herein and supersede and take priority over any and all previous verbal or written arrangements, proposals, discussions, correspondence, negotiations and agreements in connection with the sale of goods. No course of prior dealings and no usage of the trade shall be relevant to supplement, explain or modify any terms contained herein.
In the event of any conflict or inconsistency between these Standard Terms and Conditions of Sale and the terms and conditions contained in the Buyer’s Purchase Order, request for proposal or any other form issued by the Buyer, whether or not any such form has been acknowledged or accepted by Vicwest, these terms and conditions will prevail. Any additional terms and conditions of the Buyer will be deemed objected to by Vicwest and will not be binding unless Vicwest accepts the same in writing signed by an authorized representative of Vicwest.
19. RELATIONSHIP OF THE PARTIES: Vicwest and the Buyer are independent contracting parties and nothing in these Standard Terms and Conditions of Sale shall be construed as constituting or making the Buyer or Vicwest a franchiser, franchisee, partner, broker or agent of the other. Each party is an independent contractor and neither shall have any power, right or authorization to bind the other or to assume or create any obligations or responsibilities, express or implied, on behalf of the other or in the other’s name.
20. GOVERNING LAW: This agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. The parties hereby attorn to the jurisdiction of the courts of the Province of Ontario.
21. GENERAL: This agreement will enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. This agreement may only be modified by written amendment issued by Vicwest and executed by both parties. If any term of this agreement is invalid or unenforceable under any statute, regulation or other rule of law, such term will be deemed deleted, but only to the extent necessary to comply with such statute, regulation or rule, and the remaining provisions of this agreement will remain in full force and effect. All rights and remedies of Vicwest are cumulative and not alternative.
22. NON-ASSIGNMENT: The Buyer may not assign its rights or delegate its obligations hereunder without Vicwest’s prior written permission.
Vicwest Standard Terms & Conditions 2011