ALL SALES BY ALGOOD CASTERS LIMITED, D/B/A ALGOOD CASTER INNOVATIONS (“Seller”) UNLESS COVERED BY A PRIOR EXISTING WRITTEN CONTRACT SIGNED BY SELLER, ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS. ANY TERMS IN CUSTOMER’S PURCHASE ORDER OR ANY OTHER CUSTOMER DOCUMENTS WHICH ARE IN ADDITION TO, OR ARE DIFFERENT OR CONTRARY TO THESE TERMS, ARE HEREBY REJECTED.
UNLESS OTHERWISE EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, ONLY CORPORATE OFFICERS OF SELLER SHALL HAVE THE LEGAL AUTHORITY TO MODIFY OR AMEND THESE TERMS AND CONDITIONS AND NO MODIFICATION OR AMENDMENT TO THESE TERMS AND CONDITIONS WILL BE VALID OR BINDING ON SELLER UNLESS AGREED TO IN WRITING BY A CORPORATE OFFICER OF SELLER.
Quotation, Acceptance of Quotation
Where a Quotation is submitted by Seller to Purchaser, it constitutes an offer by Seller to manufacture and/or supply goods as described on the Quotation on the terms and conditions set out hereafter. The Quotation is open for acceptance by Purchaser only within 30 days of the date set out on the Quotation, unless a shorter period for acceptance is set out on the Quotation. The Quotation may be withdrawn at any time before it is accepted by Purchaser. Acceptance of the Quotation occurs when the Purchaser provides Seller with a purchase order. A Quotation does not apply to subsequent orders from Purchaser for the same goods, and supersedes all previous quotations for the same subject matter from Seller and all purchase orders and terms and conditions from Purchaser.
The Quotation includes the terms and conditions set out herein, any specifications and drawings attached thereto, and any additional written terms and conditions appearing on the Quotation. The Quotation, upon acceptance by Purchaser, constitutes the entire agreement between the parties. Other than the terms and conditions set out or incorporated herein, there are no agreements, undertakings, representations, warranties, covenants, conditions, terms or reservations, oral or written, between Seller and Purchaser respecting the subject matter of the Quotation. No change, alteration or modification of the Quotation is valid unless in writing and signed by an authorized signatory of Seller, and no course of dealings is deemed to alter the terms hereof.
If there is any conflict or inconsistency whatsoever between the Quotation incorporating these terms and condition, and the terms and conditions of a purchase order or other document of Purchaser, then the terms and conditions of the Quotation govern and any terms set out in the purchase order that are in addition to, differ from or are contrary to these terms and conditions and any terms and conditions set out on the Quotation are explicitly rejected, regardless of which document was first executed and regardless of the terms of the purchase order or other document and regardless of whether an order acknowledgement was delivered without any reservations. Purchaser’s receipt and acceptance of goods from Seller also constitutes acceptance of and consent to the terms and conditions of the Quotation.
Supply of Goods
Seller hereby agrees to sell to Purchaser the goods, as described on the Quotation once accepted by Purchaser via a Purchase Order.
Where no quotation is provided, Seller reserves the right to accept or refuse any purchase order for goods received at its sole discretion. Acceptance of a Purchase Order occurs when Seller provides Purchaser with an Order Acknowledgement. If there is any conflict or inconsistency between the terms of the purchase order on the one hand and the terms and conditions of the order acknowledgement incorporating these terms and conditions, any additional, inconsistent or different terms and conditions set out in Purchaser’s purchase order are expressly rejected.
Title in the goods transfers to Purchaser upon full payment of all amounts owed to Seller for the goods, and risk of loss passes to Purchaser once the goods are loaded on the first carrier at Seller’s facility, and all claims for loss or damage from that point in time and on must be filed by the Purchaser against the carrier.
Delivery Dates and Delays; Force Majeure
All shipping or delivery dates are approximate only and not guaranteed. No delivery delay will entitle Purchaser to reject the delivery or any future instalment or part of the purchase order, nor entitle Purchaser to a charge back, set off or claim for direct, indirect, incidental or consequential or other damages, including loss of profit, of any kind. In all circumstances, including circumstance where delivery is guaranteed on the Quotation, Seller will be excused from performance hereunder or otherwise if performance is prevented or delayed due to acts of God, war, terrorism, riot, fire, labour trouble (including strikes, lockouts and labour shortages), failure of computer or telecommunications systems to operate properly, destruction or loss of electronic records or data, plant shutdowns, unavailability of materials or components, unavailability of or delays in transportation, insufficient production capacity, unavailability or shortage of fuel products, explosion, accident, compliance with governmental requests, laws, regulations, orders or actions, or other unforeseen circumstances or other causes beyond Seller’s reasonable control. Without limiting the generality of the foregoing, Seller will be excused for any delay or failure to perform as a result of any epidemic or pandemic threats and guidelines and advisories in respect thereto, whether recommended or required by any governmental or local health authority having jurisdiction, pursuant to which Seller determines to suspend all or a part of its operations for the health and safety of its employees. In any event of force majeure as hereinabove described, Seller may, without liability, allocate and distribute the goods among its customers in such proportions, including to the exclusion of some customers such as Purchaser, as Seller, in its sole discretion, determines.
All prices shall be as set forth on Seller’s price lists as issued from time to time, and are in Canadian dollars, FOB Seller’s plant in Brampton, Ontario, Canada, unless otherwise specified in writing by Seller, and the price payable for the goods shall be as set out on Seller’s price list in effect at the time of the order. All prices exclude taxes, duties or any other charges of any kind levied by any governmental or regulatory authority on the prices or any part of them, all of which taxes, duties and other charges are to the account of and shall be paid by Purchaser. Purchaser shall pay freight, unless prepaid, and any increase in freight rates, including surcharges, for shipment, whether prepaid or not, and all demurrage shall be borne by Purchaser.
Unless specified in writing by Seller, payment is due at the time of the order. Purchaser shall pay the Seller interest monthly, calculated from the due date for payments at the rate of 1.5% per month on all amounts which are outstanding after payment is due, until the date of actual payment, whether before or after judgment. Purchaser shall pay all costs and expenses the Seller incurred in collecting payment of any overdue amount or interest from Purchaser, including but not limited to actual legal fees, process service fees and court costs paid or payable by Seller. Seller may set off any amount owing from Purchaser to Seller against any amount due or owing to Purchaser. Seller may also withhold goods to be supplied if any payment due from Purchaser to Seller is not paid to Seller by its due date.
All goods are at the risk of Purchaser upon delivery of the goods to Purchaser, its agent or to the first carrier at Seller’s facility for shipment to Purchaser, whichever delivery first occurs. All shipments are F.O.B. Seller’s plant, Brampton, Ontario, Canada unless otherwise specified by Seller. All insurance charges and related taxes and duties are for Purchaser’s account unless otherwise specified by Seller. Seller may deliver the goods in installments. Unless Purchaser specifies the routing and method of shipment, Seller shall ship by a common carrier of Seller’s choice. Seller is not liable for any delays in delivery, non-delivery or damage or breakage during delivery after Seller has delivered the goods to Purchaser, Purchaser’s agent or a common carrier at Seller’s facility, whichever first occurs.
Purchaser Failure to Accept or Take Delivery
If for any reason Purchaser fails to accept delivery of goods when they are ready for delivery, or Seller is unable to deliver the goods because Purchaser has not provided appropriate instructions, required documentation or pre-payment of freight where requested by Seller, then Seller may store the goods until delivery, and Purchaser shall be liable for all related costs and expenses, including without limitation storage fees and insurance. Upon placement in storage, (at Seller’s facility or elsewhere), the goods shall be deemed to have been delivered to Purchaser and any payment milestones triggered by delivery or readiness to ship shall be due and invoiced subject to the payment terms set out above, or as set out on the Quotation, if any, or on Seller’s order acknowledgement. Seller’s rights hereunder are without prejudice to any of Seller’s rights resulting from a failure of Buyer to take delivery of the goods and/or pay for them as required.
Purchaser is deemed to have accepted the goods unless it notifies Seller in writing of non-acceptance and the reasons therefor, within 7 days of Purchaser’s receipt of the goods from Seller, Purchaser’s agent or a common carrier, whichever event occurs first. Purchaser, upon giving such notice, shall with reasonable care hold the non-accepted goods pending Seller disposition instructions.
Unless otherwise specified on the Quotation, order acknowledgement or packing slip, all sales are final and returns or exchanges will not be accepted. Seller may, in its discretion, accept qualified and conforming products for exchange or return within 7 days of receipt. Non-qualified, non-conforming, or custom fabricated goods will always be considered final sale and are not subject to return or exchange. To qualify for return, all products require a Return Merchandise Authorization (RMA) number prior to being returned and must be in the same condition as when sold. Purchaser is responsible for all shipping costs and C.O.D. returns will not be accepted. All product accepted for return will be subject to the standard restocking charge of 15% of the net value of the invoice.
Seller reserves and Purchaser grants to Seller a purchase money security interest pursuant to the Personal Property Securities Act (Ontario) or similar legislation in all products sold and any cash receivables or cash from resale thereof to secure the full payment and performance by Purchaser of its liabilities and obligations to Seller. Purchaser shall be in default under these terms and conditions, and the security interest created hereunder shall become enforceable if: (a) Purchaser fails to pay the balance of the invoice value when due or fails to remedy any other default within ten (10) days after being notified of such default by Seller; (b) Purchaser threatens, appears to or ceases to carry on its business or substantially changes the nature of its business, all as determined by Seller in its sole discretion; (c) Purchaser becomes or acknowledges being insolvent, becomes bankrupt or generally takes measures to arrive at a compromise, an arrangement or an agreement with its creditors, or arrives at the liquidation of its assets or its bankruptcy; (d) proceedings are instituted against Purchaser in order to liquidate its assets or declare it bankrupt, which are not diligently contested by Purchaser and are not dismissed or cancelled within twenty-one (21) days from the day on which they are instituted; (e) a prior notice is given by a creditor purporting to hold or holding a prior claim of its intention to exercise its purported or prior claim or any other security interest, or if such right or security interest is exercised or if a secured creditor takes possession or appoints a receiver with respect to any part of the products sold; or (f) an order of execution is filed against Purchaser or a seizure is brought against the goods sold and should it not be quashed within ten (10) days thereafter. Purchaser acknowledges that Seller may register financing statements pursuant to the relevant legislation and Purchaser hereby waives its right to receive copies of such financing statements or any financing change statements.
All goods manufactured or supplied by Seller and 100% assembled by Seller are warranted against manufacturing defects in material or workmanship for a period of three (3) years from the date of delivery (the “Warranty Period”). For clarity, Seller does not warrant and assumes no liability for goods not manufactured or sold by Seller and the warranty provided hereunder by Seller is void and of no force and effect if Seller’s goods are combined with goods not manufactured by or purchased from Seller.
All goods being returned due to a manufacturing defect in materials or workmanship must first obtain a Return Merchandise Authorization (RMA) number from Seller, and must be returned at Purchaser’s sole expense. C.O.D. returns will not be accepted. Any goods that are found to be defective because of material or workmanship within the Warranty Period will be replaced or repaired free of charge, excluding freight and installation costs. Seller shall have sole and absolute discretion whether to replace or repair the product. Coverage under this limited warranty is excluded for claims resulting from abuse, misuse, improper installation, mishandling or improper maintenance of the goods, corrosion or rust resulting from environmental conditions, or any alterations or modifications of the product which have not been pre-authorized by Seller.
Without limiting the generality of the foregoing, all casters, wheels and related components sold by Seller are for the sole purpose of conveying goods of the type, size and weight specified for that product by Seller, and are NOT designed for the conveyance of people. It is Purchaser’s and any customer’s responsibility to determine the fitness of the caster for its application. If caster stem is to be screwed into a customer’s unit, the customer must add a washer to the stem that will cover the incomplete threads. The stem shoulder must fit tightly against the unit. Is it the customer’s responsibility to mount the caster in a workmanlike manner so there will be no risk to operator safety. Failure of the customer to meet these obligations, or substitution of Seller’s yoke or wheel invalidates this Limited Warranty.
The remedy provided hereunder is the sole remedy in contract, tort, or otherwise, and in no circumstances shall Seller be responsible for any special, incidental or consequential damages, including loss of profit or economic loss. This warranty is exclusive and is in lieu of any other warranty, written or oral, including but not limited to any implied warranty of merchantability or fitness for a particular purpose.
Limit of Liability
Under no circumstances will Seller be liable for any aggravated, indirect, consequential, punitive or special damages, including loss of profits or loss of anticipated profits, however arising and sustained by Purchaser in the performance, purported performance or non-performance by Seller of its obligations to Purchaser.
Intellectual Property Rights and Confidentiality
If Seller generated or supplied the designs for any goods to be supplied to Purchaser, then such designs, including all drawings, intellectual property, specifications and information relating to them, are confidential and the property of Seller. Purchaser shall use such proprietary and confidential materials only as required to operate and maintain the goods. Purchaser shall not disclose any proprietary and confidential materials without the prior written consent of Seller, which may be arbitrarily withheld. The confidentiality obligations stated above do not apply to information which (i) is in the public domain; (ii) was known to Purchaser prior to the receipt of such designs from Seller; (iii) was disclosed to Purchaser by a third party and without violating any obligations of confidentiality or non-disclosure; (iv) was independently developed by Purchaser or (v) is required to be disclosed by law, government, regulatory authority or court. These Confidentiality provisions indefinitely survive the termination or completion of the supply of goods from Seller to Purchaser.
These terms and conditions of sale and any documents incorporating same shall be governed by the laws of the Province of Ontario and its courts have exclusive jurisdiction over any disputes arising therefrom. No waiver by either party of the full and strict performance of any obligation of the other party is effective unless in writing. Purchaser may not assign its rights and obligations without the prior written consent of Seller, which may be arbitrarily withheld. Consent to assignment does not release Purchaser from its obligations to Seller. All notices required or permitted to be given are properly given if in writing and delivered by whatever means, including by facsimile or email, to the parties at their addresses shown in the Quotation, if any, otherwise as set out on the order acknowledgement. Either party may change its address or email address by notice of aforesaid. These terms and conditions shall be binding upon and enure to the benefit of the parties hereto and their successors and permitted assigns. 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 Seller’s website at www.algood-casters.com/tos. The most current version of these terms and conditions is also available upon request.