TERMS OF SALE
These terms and conditions of sale ("Terms and Conditions") bind Seller selling goods in Canada and its customer ("Buyer") regarding the sale by and purchase from Seller of products ("Goods") in Canada. By accepting delivery of Goods from Seller, Buyer agrees to be bound by these Terms and Conditions.
1. Sales on Credit.
If Buyer is purchasing on credit, Buyer must have on file with Seller an approved Credit Application, which can be found here Credit Application, or available upon request. For any purchase on credit, Buyer consents to Seller's Credit Agreement, the terms and conditions of which Buyer acknowledges having read and understood and are incorporated by reference herein. All accounts past due are subject to a monthly late payment charge, not to exceed the maximum allowed by applicable state and federal law. By purchasing from Seller, Buyer represents and warrants that Buyer is not a "consumer" as that term is defined in any applicable state and federal consumer protection laws and Buyer agrees to indemnify and hold harmless Seller against any legal matter based on a claim or finding that Buyer is a "consumer."
2. Entire Agreement.
Seller's acknowledgement and acceptance of Buyer's order is expressly conditioned upon Buyer's acceptance of these Terms and Conditions. No terms or conditions, and no written or oral agreement that purports to vary these terms and conditions, is binding upon Seller unless set forth in writing, signed by an officer of Seller. These Terms and Conditions including the following terms and conditions, constitute the entire and final agreement between Buyer and Seller with regard to the subject matter hereof. All negotiations, proposals and representations are merged herein, and this writing constitutes the complete and exclusive statement of the Terms and Conditions between Buyer and Seller. All other terms and conditions, whether proposed by or contained on a purchase order from Buyer, or otherwise, that is inconsistent with any of the terms and conditions set forth herein, are rejected in their entirety. BUYER ACKNOWLEDGES THAT BUYER IS NOT RELYING ON ANY REPRESENTATION OR PROMISE OF SELLER THAT IS NOT EXPRESSLY SET FORTH IN THIS PURCHASE AGREEMENT. In the event Buyer fails to accept this Purchase Agreement in writing, Buyer's consent to the terms and conditions herein is conclusively presumed, either from Buyer's failure to object within five (5) calendar days in writing or from Buyer's acceptance or use of the material delivered hereunder. Unless Buyer notifies Seller in writing to the contrary prior to making a purchase, Buyer represents and warrants that any employee or agent action on Buyer's behalf is authorized by Buyer to do so and Seller may rely upon such representation.
Seller reserves the right to discontinue, without liability, deliveries of any goods, the manufacture, use and/or sale of which in the opinion of Seller would infringe any patent now or hereafter issued, or other intellectual property right under which Seller is not licensed. Where Buyer requires tests or inspection not regularly provided by Seller, Seller may charge Buyer for the actual cost of such test or inspections.
Prices in effect at time of shipment of Goods or performance of services will prevail. All prices quoted by Seller are subject to change without notice. Prices do not include any present or future taxes, sales, goods and services, customs, duties, transportation, insurance, use, excise, value added or similar taxes and where applicable, such items will be billed as a separated item and paid by Buyer. Buyer will pay such amounts in addition to Seller's prices. Until payment in full of that total purchase price, together with any applicable interest and other charges as provided for herein (the "Obligations"), is received by Seller, title to and ownership of the Goods will remain with Seller. Buyer hereby grants Seller a security interest in the Goods and all insurance or other proceeds of disposition thereof until the Obligations have been fully satisfied. Buyer agrees to execute any documents and to furnish any information necessary to perfect or publish the foregoing with the appropriate authorities.
5. Payment Terms.
Seller will be paid for the Goods in accordance with the terms agreed upon between Seller and Buyer. If there are not terms agreed, then payment is due within thirty (30) days of delivery or invoice, whichever occurs first. In case of any default in payment hereunder or under any other contract with Seller, all amounts owing under this and other contracts by Buyer to Seller will become due, notwithstanding the terms of sale. Buyer will be liable for all expenses attendant to the collection of past due amounts, including attorneys' fees and costs. Seller will have the right to set off any amounts owing from Buyer against any amounts payable to Buyer. On overdue account, Buyer will pay to Seller, on demand, interest at the rate of eighteen percent (18%) per annum, calculated and payable monthly, on the last day of each month, not in advance. However, if the foregoing charges exceed that rate which may be lawfully charged under applicable law, then such charges will be calculated so as to not exceed the highest lawful rate. Without prejudice to any other rights, Seller may suspend further deliveries of any goods purchased if Buyer defaults in payment of any amounts due, or whenever Seller may deem itself insecure as to Buyer's performance, until Buyer remedies such default or provides assurance that satisfies Seller in its sole discretion, of Buyer's ability to perform.
Unless otherwise provided by law, Seller may require Buyer to pay or to reimburse Seller for any tax (except income tax) which now or hereafter is imposed by any taxing authority with respect to the goods purchased or the sale, purchase, manufacture, delivery or use thereof.
. In any case in which Seller makes delivery, Buyer will pay Seller's customary shipping charges. Delivery dates given in advance of actual shipment are estimates and will not be deemed to represent fixed or guaranteed delivery dates, and are subject to the availability of the Goods, freight space and prompt receipt of all necessary documentation regarding the order, if applicable. Seller will not be liable or responsible for any loss or damage resulting from delay in delivery and Seller will not accept chargebacks for delays in shipment. Partial shipments are allowed. Each delivery or shipment will be considered a separate sale. In any case in which Seller makes delivery, Buyer will pay Seller's customary shipping charges. Delivery will be made at the project site or other place of delivery adjacent to the closest public right of way. Title and risk of loss passes to Buyer upon delivery of the Goods. Should Buyer not be present to accept delivery, Buyer authorizes Seller to unload the goods and leave them at the delivery destination. Buyer releases Seller and will indemnify and hold harmless Seller from and against any and all claims demands, actions, causes of action, cost, expenses, and attorneys' fees arising out of or in connection with any and all injury including death, to any person or persons (whether third parties or agents, servants, or employees of Buyer), any and all damages to or loss of any property (whether belonging to Buyer or a third party), and any and all other damages recognized at law or in equity caused in whole or in part by or in any way related to the delivery of goods onto (or adjacent to) the project site by Seller, whenever such delivery is made in accordance with or pursuant to Buyer's instruction or authorization.
Buyer has the right to inspect the goods upon arrival. Buyer's inspection rights expire three (3) days after the arrival of the goods at the delivery destination. A failure to make inspection within that time waives notice of any defect that a reasonable inspection would have revealed. A rejection of the goods by Buyer is not effective unless written notice of rejection is given to Seller within three (3) days of delivery. Buyer's wrongful non-acceptance of Goods, or cancellation or repudiation of an agreement to purchase Goods or services entitles Seller to recover, in addition to any incidental damages caused by Buyer's wrongful non-acceptance, cancellation or repudiation, either (i) in the case of Goods which cannot reasonably be resold by Seller to a third party, or service which have already been performed by Seller, the price of such goods or services; or (ii) in the case of Goods for which other buyers exist or services not yet performed, or where an action for the price is not otherwise permitted by law, twenty percent (20%) of the contract price as liquidated damages (which constitute a reasonable estimate of Seller's loss and not a penalty). In the case of special orders, all Seller's out-of-pocket expenses, if any, incurred prior to receipt by Seller of notice of cancellation by Buyer, in connection with providing special services, developing special tooling, purchasing special supplies and the like are recoverable, in addition to the foregoing.
BUYER ACKNOWLEDGES THAT BUYER'S PURCHASE DECISION IS BASED SOLELY UPON BUYER'S DUE DILIGENCE OF THE GOODS REQUIRED BY BUYER AND NOT BY REASON OF OR RELIANCE ON ANY STATEMENT MADE BY OR ON BEHALF OF SELLER AS TO THE MERCHANTABILITY, SPECIFIC ATTRIBUTES OR OTHER INFORMATION REGARDING THE GOODS. In the case of Goods manufactured and sold by Seller with a separate written warranty, that warranty will apply. Otherwise, in the case of Goods manufactured and sold by Seller, Seller warrants only that such goods have been manufactured in accordance with Seller's specifications and are free from defects in material and workmanship at the time of sale. For all other Goods, upon request, Seller makes no warranties, but will assign or transfer to Buyer any assignable or transferable manufacturer's warranties, if any, applicable to the purchase, in lieu of all other warranties, express or implied. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SELLER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. THERE IS NO WARRANTY THAT EXTENDS BEYOND THOSE GIVEN IN THESE TERMS AND CONDITIONS. Goods manufactured by third parties are sold only with such warranties as may be extended by the manufacturer of the product. Services performed by third parties are subject only to those warranties extended by third parties. Buyer is responsible for installation and use in accordance with manufacturer's instructions.
10. Ancillary Services.
As a courtesy to Buyer, Seller may, upon request, provide certain services ancillary to the supply and delivery of the Goods. These ancillary services may include, but are not limited to, identifying potential installers for the Goods, assisting in field measurements, preparing shop drawings and visiting job sites. Seller makes no warranties regarding such ancillary services; they are provided AS IS – WHERE IS and Seller disclaims all warranties with respect to the same, either express or implied. In the event Seller provides ancillary services, it is Buyer's sole responsibility to conduct its own independent diligence regarding the services including verifying field measurements, inspecting construction work and selecting installers. Seller is not liable for any actions of any installer(s) or any defect in any work, whether or not the installer is suggested by Seller.
11. Liability and Claims Limitations.
Seller's liability on any claims for loss or damage arising out of this contract or the performance or breach or connected with the supplying of any Goods or services hereunder, or the sale, resale, operation or use of such Goods, whether based civil liability (whether contractual or extra-contractual), warranty, tort (including negligence) or other grounds, will be, at Seller's option, (i) replacement of the Goods or services, without charge, carriage paid to Buyer's facility; or (ii) refund of the purchase price paid in respect of such goods or services, plus commercially reasonable charges in connection with the return or disposition of goods (if applicable), REGARDLESS OF CAUSE OR FAULT. THIS LIMITATION OF LIABILITY REFLECTS A DELIBERATE AND BARGAINED FOR ALLOCATION OF RISKS BETWEEN SELLER AND BUYER AND CONSTITUTES THE BASIS FOR THE PARTIES' BARGAIN WITHOUT WHICH SELLER WOULD NOT HAVE AGREED TO THE PRICE OR TERMS OF THIS CONTRACT. Seller will not, under any circumstances, be liable for any labour charges without its prior written consent. SELLER WILL NOT IN ANY EVENT BE LIABLE whether as a result of breach of contract, warranty, tort (including negligence) or other grounds for INCIDENTIAL, SPECIAL OR CONSEQUENTIAL DAMAGES, including but not limited to, loss of profits or revenue, loss of use of the Goods or any associated products, cost of capital, cost of substitute products, facilities or services, downtime costs, or claims of customers of Buyers for such damage. Buyer must make any claim against Seller (whether sounding in contract or tort) within 12 months of the date of shipment of the goods or performance of the services, and any such claim not made within such 12-month period is irrevocably waived.
12. Returned Goods by Buyer.
Returns must be made in accordance with Seller's return policy. A copy of this policy may be found at https://abcsupply.com/services/return-policy/ or is available upon request.
These Terms and Conditions will be binding on and inure to the benefit of the respective successors and permitted assigns of the parties. Buyer will not assign any or all of its duties hereunder without the prior written consent of Seller, which may be withheld for any reason in Seller's sole discretion. No warranty will be assignable under any circumstances. No waiver of any provision of these Terms and Conditions by an authorized corporate officer of Seller will be valid unless the same is in writing and signer by such officer.
15. Force Majeure.
Seller is not responsible for and will not liable for any damages (of any nature whatsoever) for any delay caused in whole or in part by circumstances beyond Seller's reasonable control, including but not limited to, force majeure, fires or accidents; strikes or other differences with workers; war (whether declared or undeclared), riots or embargoes; pandemic or epidemics; delays by carriers; delays in shipment or receipt of materials from suppliers, or other supply chain delays; or any legislative, administrative or executive law, order or requisition of the federal or any state or local government or any subdivision, department, agency, officer or official thereof. In the event of any shortage of goods, Seller may allocate its available supply among Seller's customers, including Seller's branches and affiliates, in any manner Seller deems reasonable. Additional charges for local delivery may also apply.
16. Applicable Law; Severability; Amendment.
These Terms and Conditions will be governed by the laws of the Province where the Seller branch supplying the Goods is located, in a court with jurisdiction over the county in which the project for which the goods are to be used is located, or in a court or before an arbitration panel where an action between Seller and a third party is pending which concerns the subject matter of this Agreement, in all cases without reference to the choice of law, conflicts of law, or principles of any province or country which might otherwise by applied. The parties hereto agree that the United Nations Conventions on Contracts for the International Sale of Goods does not apply to these Terms and Conditions and is strictly excluded. If any provision of these Terms and Conditions is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired, and the parties will use their best efforts to substitute a valid, legal and enforceable provision, which, insofar as practical, implements the purpose of these Terms and Conditions. Seller reserves the right to unilaterally modify or amend any portion of these Terms and Conditions at any time without prior notice effective immediately upon posting at the Seller's website (Terms Of Sale).
Waiver by Seller of any terms or conditions of this contract or waiver of any breach hereof will not be construed as a waiver of any other term, condition, or breach. Determination that any provision of this Agreement is illegal or invalid will not affect the validity or enforceability of the remaining provisions of this Agreement.
18. Use of Seller's Intellectual Property.
The purchase of goods or services will not entitle Buyer to use, or otherwise identify Buyer or its business with the name, trademark or other identity of Seller. Should Buyer violate this provision, Seller reserves all remedies provided for by law or in equity, including, without limitation, injunctive relief.
19. Language of Content.
Les parties au present contrat ont exige que le present contrat et les documents qui s'y rattachent soient rediges en anglais. The parties hereto have required that the present contract and the related documents be drawn up in English.