Terms and Conditions of Sale
1. General. All products sold and services rendered by Eklecmatic Inc. (“Seller”), to any customer (“Customer”) are subject to and governed by the terms and conditions contained herein, and such terms and conditions shall apply regardless of any additional or conflicting terms or conditions that may be included on any purchase order or other form or document issued by Customer even if signed by Seller’s representative. None of the terms and conditions herein may be modified, waived or superseded except with the express written consent of an authorized officer of Eklecmatic Inc. Neither Seller’s acknowledgement of a purchase order nor Seller’s failure to object to conflicting or additional terms and conditions in a purchase order shall be deemed an acceptance of such terms and conditions or a waiver of the provisions hereof. Acceptance by Customer of products sold or services rendered by Seller shall be deemed assent to the terms and conditions contained herein.
2. Quotations and Prices. Pricing information, budgetary proposals, quotations and/or any other similar documentation given by Seller to Customer are not an offer to sell but only an invitation for an order. No transaction shall be deemed completed until Seller has accepted Customer’s purchase order and Seller reserves the right not to accept a purchase order, or a portion thereof, for any reason. Unless otherwise expressly agreed to by Seller in writing, prices are subject to change without prior notice and products are billed at prices in effect at the date of shipment. Clerical errors are subject to correction and products in stock are subject to availability at time of order acceptance. Moreover, and without limiting the foregoing, Seller expressly reserves the right to change prices if quantities change or if changes in market conditions so warrant.
3. Payment. Subject to credit approval, payment for all amounts due hereunder shall be due net twenty (20) days from date of invoice unless otherwise expressly agreed to by Seller in writing. Notwithstanding the foregoing, Seller may at its sole discretion require that full payment be executed before delivery of any product or provision of services. Payments not received when due will be subject to a late fee of two percent (2%) per month, or the maximum lawful rate, whichever is lower, of the outstanding invoice balance per each calendar month or portion thereof past due. In case of any and all unpaid account balances must be paid within 10 days of receipt by the customer of notice of interest charges. Any partial payments received from the SELLER shall be firstly applied to any accrued interest, and secondly applied to the principal balance owing. Late payment charge does not imply any obligation by the Seller to grant any extension of the terms of payment. Should no payment be received within forty (40) days from the date of the invoice, all discounts including Distributor's discounts shall be cancelled, and the Customer shall be charged full Standard Prices applicable for the packaging quantities purchased. Such discounts may be reinstated only after full payment, including charges and fees, has been received, upon Seller’s sole judgment.
4. Taxes and Duty. Customer shall pay the amount of any taxes, duties, levy, fee, assessment and similar charges levied and/or imposed by any government authority or taxing authority, with regards to any products purchased from the Seller. Such charges that are not included in the price of the products or services and will be added to payments due to Seller. Customer agrees it will be responsible and shall indemnify Seller for all additional taxes or penalties from a taxing authority, and all legal expenses incurred by Seller due to incorrect taxing information furnished by Customer.
5. Cancellations. Purchase Orders that have been accepted by Seller cannot be cancelled by Customer without prior written authorization of Seller. This statement does not imply that such consent will automatically be granted. Requests for modification or cancellation must be sent to the Seller in writing. Customer agrees to indemnify Seller against any loss arising from any cancellation, and to reimburse Seller for all expenditures incurred by Seller with respect to any cancellation, and in no event less than 10% of our quoted prices.
No cancellation shall be accepted by the Seller for special, modified, assembled, custom made or custom labeled products.
For blanket orders of Standard Products, where special discounts have been negotiated based on large quantities, cancellation may be accepted after the Customer has accepted at least seventy per cent (70%) of the quantity initially ordered.
Seller reserves the right in its sole discretion to cancel existing purchase order, when Seller deems itself insecure with respect to Customer’s ability to pay for the purchase order.
6. Returns. Returns are only allowed if prior written authorization is obtained from Seller, the product is new, in resalable condition and in the original manufacturer’s package with sales receipt or invoice. Return material authorization numbers must accompany all previously authorized material returns and credit shall be issued based on Customer’s purchase price for the returned product less restocking charges of ten percent (10%) of invoice value, freight, or other expenses. No return shall be accepted by the Seller for special, modified, assembled, custom made or custom labeled products. Partial returns of products offered at bulk prices, discounted prices or under special quotes, are subject to payment by the Customer of the difference between the normal applicable prices and the special prices for the products, applied to the quantities non-returned. All products returned based on the above conditions shall be inspected by Seller. Except in case of Products under Warranty, damaged, defective, incomplete, or not re-saleable products shall not be accepted by Seller and will be placed at the Customer’s disposal. The customer shall pay all shipping costs, duties, taxes, levy, fee and brokerage charges for returns, including products covered under warranty.
7. Delivery, Shipment and/or Performance. Any shipping, delivery and/or performance dates given in advance are estimates only and are not guaranteed, although reasonable commercial efforts will be made to deliver, ship and/or perform in accordance with such estimates. No liability shall attach against Seller on account of any delay in delivery, shipment or performance by Seller. Customer agrees to accept partial or pro rata deliveries, shipments and/or performance and hold Seller harmless from any liability that may result from Seller’s inability to execute in full any purchase order.
8. Inability to Perform. Seller’s performance of its obligations hereunder may be excused or suspended without liability to Customer in case of catastrophes or occurrences beyond Seller’s control, including but not limited to inability to secure products from vendors or suppliers at reasonable prices or in sufficient amounts through usual sources of supply.
Delivery dates given in acceptance of Purchase Orders are to be deemed approximate. Seller shall not be liable for any delays or inability in delivery due to causes beyond its control, or beyond the control of Seller's suppliers, including acts of God, pandemics, acts or orders or regulations of any military or civil authority, war or civil riots, strikes, fire, flood, labour shortages, accidents, acts of the Customer, delays on transportation, shortages of materials, or any other causes or causes beyond Seller’s reasonable control. Any such delay shall extend the delivery date accordingly.
As a distributor, Seller does not manufacture any of the products it sells. The availability and continuity of such products is therefore entirely dependent on the vendors and manufacturers from which we supply ourselves. As such, any product delays or shortages, or any other impact on our performance obligations, that may be suffered as a result of current or future disruptions to the supply chain, whether resulting from any other circumstances, shall be considered a force majeure event. Accordingly, no liability shall attach against Seller on account of any product delays or shortages, or inability to perform, that may be suffered as a result of current or future disruptions to the supply chain, whether resulting from supply chain or any other circumstances. By submitting a purchase order to Seller, you agree to accept any partial or late delivery, shipment and/or performance on the part of Seller and hold Seller harmless from any liability that may result thereof.
9. Transportation Charges. All transportation charges and related expenses shall be the responsibility of Customer unless otherwise expressly agreed to by Seller in writing. If freight is allowed at Seller’s cost, Seller reserves the right to select the carrier of choice and the unloading of material at the point of destination shall be the sole responsibility of Customer. For all shipments, Seller responsibility ceases when the transportation company receives the material in good condition. The shipment must be checked upon Customer receipt for transportation damages, and if damaged, a claim must be made against the transportation company immediately and sufficient evidence provided to Seller. It shall be the Customer’s responsibility to arrange for appropriate insurance of the products shipped. All prices listed are FOB in Mississauga, Ontario, Canada, unless otherwise stated.
10. Shortage, Inaccuracy or Discrepancy Claims. All claims for shortage, inaccuracy or discrepancy in shipment must be made in writing to Seller within three (3) days after receipt of products. In the event Seller does not have immediate inventory of the specific product at issue, alternatives may be offered for consideration.
11. Title and Risk of Loss. All goods shall be shipped FOB SHIPPING POINT unless otherwise expressly agreed to by Seller in writing. Risk of loss pass to Customer at the point of shipment. Customer agrees to indemnify, defend and hold Seller harmless from any and all losses arising out of any or all claims, suits and/or demands related to the products while at Customer’s risk.
12. Status of Seller. Customer acknowledges and agrees that Seller is a distributor and not the manufacturer of any products provided to Customer and that the terms “products”, “goods”, “services” and/or “work”, and synonyms thereof, do not include the design, fabrication or manufacture by Seller of such products. Manufacturers and vendors of the products provided to Customer by Seller are not acting as subcontractors, agents, representatives, or employees of Seller and shall not be considered as such. Seller expressly rejects and disclaims any liability with respect to the design, fabrication or manufacturing of products as well as any liability which may incumbent to designers, manufacturers and vendors of products sold by the Seller.
13. Third Party Agreements. Seller shall not be bound by the provisions of any contract or agreement that may exist between Customer and any third party to which Seller is not directly party to. Seller expressly rejects and disclaims any liability under any such contract or agreement.
14. Limited Warranty. The Seller warrants to the Purchaser that the products purchased shall be free from defects in material and workmanship under normal use and service for the period of one year from the date of shipment.
The Purchaser shall send to the Seller prompt written notice and explanation of the circumstances of any claim that the products were proved defective in material or workmanship.
The Seller will not be liable for any negligence, misuse, improper operation, maintenance or installation, alteration, unauthorized repair, accident or unusual degradation of the products.
Any warranty issued by the manufacturer or vendor of products shall be solely that of the manufacturer or vendor and not of the Seller. Seller hereby assigns to Customer, as of the date that title passes to Customer for such products, all of the manufacturer’s or vendor’s warranties, express or implied, if any and if assignable, with respect to the products, and Seller hereby authorizes Customer to make or settle any claims under such warranties directly with any such manufacturer or vendor.
If the product is being acquired for resale, the Customer will make, in connection with any such resale, only those warranties contained herein and will indemnify SELLER against such claims, clauses of action and judgments, including legal and agent fees, which arise from any representation, warranties, or agreements made by or entered into by SELLER, other than those contained herein.
Disclaimer. EXCEPT FOR THE WARRANTIES OF TITLE ABOVE, SELLER MAKES NO WARRANTY REGARDING ANY OF THE PRODUCTS SOLD OR SERVICES RENDERED BY IT, MAKES NO REPRESENTATIONS, PROVIDES NO INDEMINITIES (INTELLECTUAL PROPERTY OR OTHERWISE) AND, TO THE EXTENT PERMITTED BY LAW, DISCLAIMS ANY AND ALL OTHER CONDITIONS OR WARRANTIES OF ANY NATURE OR KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY CONDITION OR WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR PERFORMANCE. ANY DOCUMENTATION, RECOMMENDATION OR ASSISTANCE PROVIDED BY SELLER CONCERNING THE PRODUCTS, THEIR USE, DESIGN, APPLICATION, OPERATION, OR OTHERWISE, IS FOR CUSTOMER ONLY, SHALL NOT BE CONSTRUED AS REPRESENTATIONS, CONDITIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND IS ACCEPTED BY CUSTOMER AT ITS OWN RISK AND WITHOUT ANY OBLIGATION OR LIABILITY TO SELLER. SELLER SHALL NOT BE LIABLE FOR INFORMATION OR DOCUMENTATION PROVIDED BY CUSTOMER OR ANY OTHER SECONDARY SOURCES AND SHALL NOT BE RESPONSIBLE FOR THE PERFORMANCE OF CUSTOMER OR ANY THIRD PARTY HEREUNDER OR OTHERWISE. IT IS CUSTOMER’S SOLE RESPONSIBILITY TO DETERMINE THE SUITABILITY AND/OR QUANTITY OF THE PRODUCTS OR SERVICES TO BE PROVIDED BY SELLER. CUSTOMER’S EXCLUSIVE REMEDY AGAINST SELLER FOR BREACH OF ANY WARRANTY ARISING HEREUNDER SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF THE SPECIFIC PRODUCT OR REPERFORMANCE OF THE SERVICE AT ISSUE, OR RETURN OF THE PURCHASE PRICE. SELLER ASSUMES NO LIABILITY FOR ANY DISMANTLING, REMOVAL, INSTALLATION, RE-INSTALLATION OR LABOR COSTS, OR ANY CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE FOREGOING.
15. Liability. Except to the obligations specifically assumed by the Seller under Limited Warranty (Clause 17), the Customer indemnifies and holds harmless the Seller from and against all claims, damage, liability, loss and whatsoever expense, including legal fees, arising out of this sales agreement, whether or not such claims, damage, liability, loss and whatsoever expense are insured by either party, and whether or not such claims, damage, liability, loss and whatsoever expense is a consequence of fundamental breach, and irrespective of any negligence on the part of the Seller or any of its affiliates or subcontractors.
Without limitation, the Customer indemnifies and holds harmless the Seller from and against:
o Claims in respect of damage of or caused by any product, including bodily injury, damage to property and any other direct or indirect loss or increased cost suffered by the Customer or any third party.
o Claims in respect of delays in delivery of any product.
o Claims in respect of the infringing of patent, confidential information or any other intellectual or industrial property or any other right arising from the use of, or in respect to any product.
o Claims related in any other way to any product.
The Seller will not be liable for any negligence, misuse, improper operation, maintenance or installation, alteration, unauthorized repair, accident or unusual degradation of the products.
No representations, warranties or conditions, express or implied, including but not limited to statements regarding capacity, suitability for use, fitness for operation or performance, privilege or freedom from any liens and encumbrances including statement regarding violation of existing patents, shall be deemed to be a warranty or statement by the Seller for any purpose, nor give rise to any liability whatsoever by The Seller.
The Customer's sole and exclusive remedy in the event of the breach of warranty as set forth herein, is expressly limited to:
o the correction of the defect by repair, modification or replacement, or
o issuance of a credit or refund of the purchase price of the defective product, as the Seller’s election and sole expense.
EXCEPT AS STATED IN THIS AGREEMENT, NO OTHER WARRANTIES EXIST, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A SPECIFIC PURPOSE. MOREOVER, CUSTOMER EXPRESSLY AGREES THAT UNDER NO CIRCUMSTANCE SHALL THE TOTAL LIABILITY OF SELLER TO CUSTOMER EXCEED THE VALUE OF THE SPECIFIC PRODUCT OR SERVICE AT ISSUE.
16. Audit. Customer shall have no right to audit any books and records of Seller in relation to the provision of products by Seller to Customer. Moreover, and notwithstanding anything to the contrary, in no event shall Seller be deemed obligated to allow Customer, or any of its affiliates or agents, to provide any records or portions thereof that contain confidential information regarding Seller, its customers, employees, manufacturers and/or vendors.
17. Governing Law and Exclusive Jurisdiction. The validity, interpretation, and performance hereof and of any and all purchase orders issued by Customer shall be governed by, construed and interpreted in accordance with the law of the province of Ontario, without regard to conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the terms and conditions contained herein or to any and all purchase orders issued by Customer. If deliveries are made outside of Canada, the governing law and the exclusive jurisdiction shall be the laws of the province of Ontario where the products are delivered from, without regard to conflicts of law principles.
18. Compliance. Customer represents and warrants to Seller that it shall comply with all applicable laws, regulations, ordinances and rules including, without limitation, those regarding corruption, bribery, anti-trust and competition, and export controls.
19. Export Controls. Customer warrants and represents that it will at all times comply with all applicable laws and regulations, including trade, economic, or financial restrictions or trade embargoes and any amendments thereto (collectively, the “Laws”) imposed by any applicable governmental authority, including, where applicable, Canada, the United States and the European Union. Seller shall not be liable, and Customer agrees to hold harmless and indemnify Seller, for any breach of such Laws. Customer agrees that it shall not, except as otherwise permitted under applicable Laws, transship, re-export, or otherwise divert goods purchased from Seller. If applicable, Customer undertakes to timely provide all information and documentation necessary for export, shipment and import. Seller shall not be liable, and Customer shall hold Seller harmless, for delays or any other losses resulting from Customer’s failure to timely provide accurate information and documentation, export/import reviews, or any related permitting procedures. To the extent permitted by law, Customer shall, promptly upon becoming aware, provide to Seller details of any claim, action, suit, proceedings or investigation against it with respect to the Laws brought by any enforcement authority. In the event that Seller should believe, acting in good faith, that Customer has violated, or is under investigation for violating, any Laws, or if Customer is identified on any applicable sanctions list, Seller shall have the immediate right to terminate its relationship and/or any contract with Customer without liability.
The Customer acknowledges that he has read and understood the present Agreement, and agrees that the same is the complete statement of the agreement between the Customer and the Seller, that the Customer shall be bound by its Terms and Conditions, and that any previous communication, agreement, or statement, verbal or in writing, express or implied, related to the subject matter, are superseded by this Agreement.