These Terms and Conditions are incorporated into and form part of your contract with IDEAL WAREHOUSE INNOVATIONS, INC. and each of its U.S. and Canadian subsidiaries and affiliates (collectively, the “Supplier”).
The Terms and Conditions herein shall apply to all contracts, quotes, purchase orders and invoices generated by the Supplier including any other documents or change orders, revisions, amendments and supplementary agreements issued by the Supplier or any of the U.S. and Canadian subsidiaries and affiliates that may from time to time be deemed to be the Supplier.
DISCLAIMER. Any merchandise or materials that are manufactured by third parties not related to the Supplier shall be accepted for supply or installation in an “as is” condition without any express or implied warranties of any kind (other than manufacturer’s warranties) from the Supplier. To the fullest extent permissible pursuant to applicable law, the Supplier disclaims all warranties, express or implied, including, but not limited to implied warranties of merchantability and fitness for any particular purpose or use. The Supplier does not warrant or make any representations of any kind regarding the use, reliability, effectiveness or fitness for purpose of the merchandise or materials supplied or installed by the Supplier. With respect to third party suppliers, such as Impact Recovery System (“IRS”), EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THE AUTHORIZED BROCHURES AND PUBLICATIONS OF IRS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IRS AND SUPPLIER DISCLAIM AND EXCLUDE ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING IN ANY MANNER ITS PRODUCTS OR PRODUCT CONDITIONS, INCLUDING, WITHOUT LIMITATION, THAT OF MERCHANTABILITY, SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR A RESULT TO BE DERIVED FROM THE USE OF ITS PRODUCTS. BUYER ACKNOWLEDGES THAT IT IS A SOPHISTICATED USER AND/OR RESLLER OF THE PRODUCTS AND AGREES THAT THIS PROVISION IS AN INTEGRAL PART OF IRS’ AND SUPPLIER’S PRICING AND AN IMPORTANT FACTOR IN ITS WILLINGNESS TO PROVIDE/SELL SUCH PRODUCTS TO BUYER. SUPPLIER, IRS AND THEIR DISTRIBUTOR’S AGGREGATE CUMULATIVE LIABILITY AND OBLIGATION SHALL BE TO REPLACE SUCH QUANTITY OF PRODUCT SOLD TO BUYER WHICH IS PROVEN TO BE DEFECTIVE OR NON-CONFORMING, IN A MANNER SUITABLE TO IRS AND/OR SUPPLIER TO ASCERTAIN THE DEFECT OR NON-CONFORMITY COMPLAINED OF IF REPORTED TO IRS/SUPPLIER IN WRITING WITHIN THIRTY (30) DAYS OF THE DISCOVERY OF THE DEFECT OR NON-CONFORMITY. NEITHER SUPPLIER, IRS OR THEIR DISTRIBUTOR SHALL BE LIABLE EITHER IN TORT OR IN CONTRACT FOR ANY LOSS OR DAMAGE, DIRECT, INCIDENTAL, OR CONSEQUENTIAL, ARISING OUT OF THE USE, MISUSE, OR INABILITY TO USE THE PRODUCT SOLD BY IRS AND/OR SUPPLIER.
Unless the parties otherwise agree in writing, the Supplier shall be entitled to ship the merchandise and materials ordered by the buyer through such entities and locations as the Supplier believes appropriate to satisfy the buyer’s order in a cost effective manner. Applicable tax shall be in addition to the sale price for all materials and services provided by the Supplier. Title to the product and risk of loss or damage shall pass from Supplier to buyer or other shipping point.
The Supplier is not responsible for obtaining any special consents, permits or approvals for exporting, importing or otherwise delivering the merchandise or materials to the buyer or to whomever or wherever the buyer directs; it being understood and agreed that the buyer shall be responsible for ensuring import/export permits, property regulations, zoning by-laws, landlord or property management approvals and other consents and permissions have been obtained to allow expedited delivery of the merchandise and materials supplied by the Supplier, unless the Supplier expressly agrees in the contract to undertake to obtain such consents or permits. Special or additional shipping charges may be charged back to the buyer as and when directed by the Supplier in the event the Supplier incurs charges that are the responsibility of the buyer.
The Supplier aims to provide up-to-date and accurate information in respect of all merchandise and materials that it promotes and supplies from time to time, however, the Supplier assumes no liability for inadvertent and inaccurate information posted in any historic website pages or promotional materials. In the event of an occurrence of an unforeseen or adverse circumstance of a material nature, the Supplier shall be entitled to amend, terminate or cancel the herein contract, order or quotation to allow the Supplier to correct or remedy the contract in such manner as the Supplier believes appropriate.
The buyer acknowledges and agrees that the Supplier may approach the end user of the merchandise and materials supplied by the Supplier to obtain information about the quality, suitability and/or merchantability of the goods, merchandise, materials and/or services provided by the Supplier.
STANDARD PAYMENT TERMS. All non-account customers must provide a deposit of 50% of the contract price (including taxes, if applicable) to the Supplier on or before the date that the Supplier ships the merchandise and/or materials and the balance of the contract price to be paid upon the date of receipt of the merchandise and/or materials supplied by the Supplier. No holdbacks or deferral of payment of the contract price shall be permitted without the express written consent of the Supplier. Customers that wish to establish an account with the Supplier must first be approved by the Supplier for creditworthiness. Approval for waiver of deposit or a credit account shall be in the Supplier’s sole and unfettered discretion. Standard terms of payment for customers on approved credit are net 30 days. Credit card payments may be subject to an additional 3% transaction levy. All accounts that are not paid within 10 days of due date shall bear interest at the rate of 2.5% per month.
QUESTIONABLE PAYMENT. The buyer certifies that neither it, nor any of its directors, officers, employees or agents is an official, agent of employee of any government or governmental agency or political party or a candidate for any political office on the date of this Agreement. The buyer shall promptly notify the Supplier of the occurrence of any event which would or may result in an exception to the foregoing representation. The buyer shall not, directly or indirectly, in the name of, on behalf of or for the benefit of the Supplier offer, promise or authorize to pay, or pay any compensation, or give anything of value to, any official, agent or employee of any government or governmental agency, or to any political party or officer, employee or agent thereof. The buyer shall require each or its directors, officers, employees and agents to comply with this provision and any breach of the provision shall entitle the Supplier to terminate any order effective immediately upon notice to the buyer.
RETURN POLICY. If, after consultation with Supplier’s Customer Service Department, buyer is not satisfied with a stock product received from Supplier, buyer may return the product within 30 days from the time of receipt, subject to the following fees: regularly stocked goods: 15% restocking fee; standard, non-stocked goods: 35% return fee; custom goods: 40% return fee. Within this timeframe, products may be returned, freight prepaid, and must be in their original packaging and in resalable condition. A Return Authorization Number must be obtained from Supplier’s Customer Service Department. Supplier has the right to refuse any shipments not having this authorization. Supplier inspects all returns and reserves the right to refuse credits on damaged, used or non-resalable items. Returns may be subject to restocking fees based on the return policy of the manufacturer, as well as shipping or other fees. Items which are built-to-order are considered non-returnable.
MINIMUM ORDER. The Minimum Order amount shall be $USD 150.00.
PROMOTIONAL MATERIALS AND ADVERTISING. The buyer may include the Products in its catalogues, product listings, sales brochures and similar promotional materials only if it provides copies of such materials to the Supplier for its approval in writing. The buyer shall also maintain an adequate inventory of Supplier’s current sales material and samples for use in promoting the sale of the products. It is understood and agreed that all advertising media generated by the buyer which displays or promotes the Supplier’s products requires written consent and approval by the Supplier’s authorized representative. All materials, merchandise and products sold by the Supplier shall bear Supplier’s trademarks, and the buyer agrees not to remove or efface such trademarks.
COMPLIANCE WITH LAWS AND GOVERNING LAW. The buyer shall comply with any and all governmental laws, regulations and orders which may be applicable to buyer by reason of its purchase or sale of the products governed by these Terms and Conditions, including any and all laws, regulations or orders which govern or affect the ordering, export, shipment, import, sale (including government procurement), delivery or redelivery of products. These Terms and Conditions shall be governed in compliance with the laws of Ontario, Canada and the federal laws of Canada applicable therein and shall be treated, in all respects as an Ontario, Canada contract. The buyer and Supplier submit to the non-exclusive jurisdiction of the Courts of Ontario, Canada. The buyer and Supplier hereby exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
HEALTH, SAFETY, ENVIRONMENTAL STANDARDS AND LABELLING. The buyer agrees to advise the Supplier in writing fully with respect to all health, safety, environmental and other standards, specifications and other requirements imposed by law, regulation or order in the territory and applicable to the products. The buyer shall also advise the Supplier of all instructions, warnings and labels applicable to the products which are necessary or desirable under laws, regulations or practices in the relevant territory.
LIMITATION OF LIABILITY. IN NO EVENT SHALL SUPPLIER BE LIABLE FOR INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF PROFITS, SAVINGS OR REVENUE OR DOWNTIME. FURTHER, IN NO EVENT SHALL SUPPLIER BE LIABLE TO BUYER FOR ANY AMOUNT EXCEEDING THE NET AMOUNT OF THE ORDER. BUYER ACKNOWLEDGES THAT IT IS A SOPHISTICATED USER/RESELLER OF THE PRODUCTS PURCHASED FROM SUP%; PLIER AND AGREES THAT THIS PROVISION IS AN INTEGRAL PART OF SUPPLIER’S PRICING AND AN IMPORTANT FACTOR IN ITS WILLINGNESS TO PROVIDE/SELL SUCH PRODUCTS TO BUYER.
BUYER’S DEFAULT. If Buyer defaults in any payment of performance hereunder or becomes subject to any insolvency, receivership or bankruptcy proceeding or makes an assignment for the benefit of creditors or, without Supplier’s consent, voluntarily or involuntarily sells, transfers, leases or permits any lien or attachment on the equipment and/or parts delivered hereunder, Supplier may terminate the Order with Buyer and treat all amounts then or thereafter that Buyer owes hereunder to be immediately due and payable (subject only to credits required by law) or Supplier, at its option, without prejudice to any other lawful remedies, may defer delivery or cancel any order then outstanding or repossess said equipment and/or parts by any means available by law. Supplier shall be entitled to receive reimbursement for its reasonable and proper cancellation charges, plus, in any proceeding or action relating to a default by Buyer, Supplier shall be reimbursed by Buyer for Supplier’s legal fees and cost incurred by Supplier in respect thereof.
INDEMNITY. Buyer shall indemnify and hold harmless Supplier, its affiliated companies and their respective officers, directors and employees from any claims, damages, losses or expenses which are caused by or arise out of any negligent or intentional act or omission of buyer, or buyer’s agents, employees, subcontractors, and/or suppliers.
INTELLECTUAL PROPERTY/DRAWINGS AND CONFIDENTIALITY. All specifications, drawings, designs, data, information, ideas, methods, patterns and/or inventions made, conceived, developed, or acquired by Supplier incident to procuring and/or carrying out an Order shall vest in and remain the property of Supplier. Should it be necessary during the performance of an order for Supplier to supply technical information to buyer, then Buyer agrees (i) that the disclosure of such information is in confidence; (ii) such information is the sole and exclusive property of Supplier and is subject to return upon demand; and (iii) such information is not to be used by buyer, its employees or agents, nor copied or disclosed to third parties without the express written consent of Supplier, except that prohibitions against disclosure shall not apply to information which is or becomes publicly available or is or becomes available to buyer from a third party through no fault of Buyer. Similar undertakings shall exist on the part of Supplier for confidential information received by Supplier from buyer.
ERRORS. Clerical and stenographic errors are not binding and are subject to corrections.
RIGHT TO TERMINATION/RIGHT TO REFUSE ORDERS. Supplier shall be entitled to terminate an order upon notification(s) from buyer of its intent to delay shipment authorization for the goods and services covered by the order beyond the agreed upon delivery date provided that any and all delays initiated by buyer exceed 180 days from the date of the first notification. Upon termination of the order Buyer shall be entitled to all work in progress and purchased materials acquired for this contract by Supplier. Shipment of these materials would immediately be made to a location specified by buyer at buyer’s expense, once payment for the work in process has been received. Supplier shall have the right at all times to refuse to accept an order at its sole discretion.
NOTICES. Notices to Supplier and Buyer shall be given to the respective addresses set forth in the quotation or order acceptance or other document to which these Terms and Conditions are attached and made a part.
NON-WAIVER. No condoning, excusing or waiver by Supplier of any default, breach or non-observance by buyer at any time or times with respect to any covenants or conditions set forth herein shall operate as a waiver of Supplier’s rights with respect to any continuing or subsequent default, breach or non-observance, and no waiver shall be inferred from or implied by any failure to exercise any of its rights by Supplier.
Should any provision of these terms and conditions be declared by any court of competent jurisdiction to be invalid or unenforceable, the remaining provisions shall not be affected thereby, it being the intent of the parties that they would have executed the remaining portion without including any such part or portion which may for reason be declared invalid.
ENTIRE AGREEMENT/AMENDMENT. Supplier and buyer agree that these Terms and Conditions constitute their complete and exclusive agreement regarding the subject matter of buyer’s order and supersede any prior communications, representations or agreements of the parties, whether oral or written. These Terms and Conditions cannot be altered, amended, or modified except in writing executed by an authorized representative of each party.
ACCEPTANCE OF THESE TERMS AND CONDITIONS. Buyer understands that by issuing a purchase order to Supplier, all of the Terms and Conditions herein have been accepted by buyer.
No assignment of this order by Buyer without the consent of Supplier in writing shall be binding. Supplier reserves the right to (a) assign its rights, duties and obligations to any party purchasing substantially all of Supplier’s assets and (b) subcontract the manufacture of products. To the extent that assignment is permitted, this Agreement shall inure to the benefit of and be binding upon each party and its permitted successors and assigns.
HEADINGS. Captions or headings are inserted only for convenience and shall not be construed as part of the foregoing terms and conditions or as a limitation upon the scope of the particular section to which they refer.
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