Customer Terms and Conditions of Sale


EJ USA, Inc. Terms and Conditions of Sale

All sales of products by EJ USA, Inc. ("Seller") are made on the following terms and conditions.

  1. Offer and Acceptance. The quotation provided by Seller, as may be amended from time to time, is an offer to enter into a contract with the buyer identified on the quotation or to whom the quotation is otherwise provided (hereinafter the “Buyer”) to sell to Buyer the products described on Seller’s quotation (the “goods”). These Terms of Sale and Seller’s quotation and order confirmation, together with any documents that are mutually executed by authorized representatives of each of the parties, constitute the “Contract”. Neither Seller’s quotation, any order confirmation or other document issued by Seller nor Seller’s manufacture or delivery of the goods shall constitute an acceptance of any terms and conditions attached to or incorporated into any purchase order or other document issued by Buyer, and any such general terms and conditions issued by Buyer are specifically excluded and not incorporated into the Contract. Any of the following acts by Buyer shall constitute its acceptance of Seller’s offer and these Terms of Sale in their entirety: (i) acknowledging Seller’s quotation; (ii) issuing a purchase order for the goods on the same or substantially the same terms as reflected on the face of Seller’s quotation; (iii) accepting delivery of the goods; or (iv) by other conduct which fairly recognizes the existence of a contract for the purchase and sale of the goods. Any additional or different terms proposed by Buyer, whether in its purchase orders, request for quotation, or other written materials, or otherwise are unacceptable to and expressly rejected by Seller and are not part of the Contract and shall have no effect with respect to any purchases of the goods by Buyer. Acceptance by Buyer of this offer and Seller’s performance under any purchase order issued by Buyer is expressly limited to and conditioned upon Buyer’s acceptance of the terms of Seller’s quotation and these Terms and Conditions of Sale exclusively.

    Quoted terms shall remain in effect for 30 days or such other time as is stated on Seller's quotation. Stenographical and clerical errors in quotations are subject to correction. Buyer shall be solely responsible for determining the materials, dimensions and quantities required for a particular project or order. Seller's quotation is based on various business factors and considerations and may not be used by any other contractor or any other person or entity without Seller's written consent

  2. Prices. Prices do not include (i) any applicable sales, use or other tax or (ii) the cost of non-returnable pallets, separators, tops, wire-bound boxes or any other special containers. Such items may be invoiced separately. Seller may change its quoted prices upon an unusual or unforeseen increase in Seller's costs.
  3. Payment Terms. Unless otherwise specified in Seller's quotation or acknowledgment, payment in full of the price is due at the location, and in the method, designated by Seller thirty (30) days after the date of invoice of the goods, without discount. Any payment that is not made when it is due shall accrue a finance charge of 1-1/2% per month. In the event of Buyer’s failure to timely pay or Seller’s reasonable doubt as to Buyer's ability to pay, Seller may require advance payment or collateral and may refuse fulfillment of further shipments until its demand is fulfilled. If Buyer becomes delinquent in payment or refuses to accept C.O.D. shipments, Seller shall have the right, in addition to any and all other rights, to cancel any order of Buyer, to withhold further deliveries, and declare all unpaid amounts for goods previously delivered immediately due and payable.

  4. Delivery and Risk of Loss. Unless otherwise specified on Seller’s quotation or order confirmation, Seller shall deliver the goods FCA (Incoterms 2010) Buyer’s facility or other directed location. Title and risk of loss of the goods will pass to Buyer upon delivery of the goods as determined by the applicable delivery terms. Delivery dates are estimated and are not guaranteed.   Time is not of the essence to any delivery of goods. Seller will use reasonable commercial efforts to meet Buyer’s requested delivery dates, provided that Seller has been provided with sufficient lead-time. Seller may at its discretion, ship all the goods at one time or in multiple shipments. Seller shall have the right, but not the obligation, to determine the method of shipment and routing of the goods, unless otherwise stated in Seller's quotation or acknowledgment. Buyer or its carrier shall be responsible for supervising the loading and unloading of goods and for securing all loads for safe transport, and shall defend, indemnify and hold Seller harmless from any liability for personal injury, death or property damage resulting from the loading, transport, delivery or unloading of the goods.

  5. Unavoidable Delay. If Seller is unable to deliver goods or experiences a delay in its ability to deliver as a result of causes beyond Seller’s reasonable control (such as acts of God, natural disasters, casualty, labor trouble or disputes (including strikes or lockouts), accidents, unavailability of supplies, equipment, tooling or transportation, or Buyer's failure to approve production samples), then the estimated date of delivery or performance time shall be extended for as many days beyond the estimated date of delivery as are required to obtain removal of any such causes, and Seller shall not be liable to Buyer for any damages caused by the delay or failure to perform.

  6. Warranties and Limited Remedies.Unless otherwise set forth in the quotation, Seller warrants to Buyer only that, at the time of delivery, the goods will be free from defects in material and workmanship and will conform to any mutually agreed upon written specifications and/or drawings. If , however, Buyer's representative agrees, either orally or in writing, to a change in or waiver of a portion of the specifications for any shipment of goods, then such goods shall be considered conforming if they conform to the specifications as changed or with such waived portion excluded. The warranty period for the goods shall be as follows: 

    1. For hydrants, valves, or detectable warning plates manufactured by Seller, the warranty period shall be ten years from the date of delivery.
    2. For aluminum hatches manufactured by Seller, the warranty period shall be five years from the date of delivery.
    3. For all other goods manufactured by Seller, the warranty period shall be one year from the date of delivery.

    Buyer agrees to inspect all of the goods immediately upon receipt from Seller.  In the event that Buyer believes that a good is non-conforming with the warranties specified herein, then Buyer will promptly notify Seller of the alleged defect in writing and provide to Seller as much information as is available to Buyer about the alleged non-conformity.  If requested by Seller, Buyer will return to Seller all (or, if not feasible, a statistically significant sample) of the allegedly non-conforming goods and the assemblies into which such goods are incorporated, if applicable, together with any additional information or documentation reasonably requested by Seller, for the purpose of determining if the goods are non-conforming with the warranties specified herein.

    If Seller determines that the goods are non-conforming, Seller’s sole liability to Buyer and Buyer’s SOLE AND EXCLUSIVE REMEDY under this warranty (whether or not the non-conforming goods have been installed and must be the subject of a recall, customer satisfaction or other service campaign or similar action) is limited to the repair or replacement of the non-conforming goods only; provided, however, that written notice that the goods are potentially non-conforming must be given by Buyer to Seller within five (5) days after the delivery of the goods to Buyer or, if Buyer’s inspection of the goods could not have uncovered the potential non-conformance, within thirty (30) days after Buyer knew or reasonably should have known that the goods were potentially non-conforming, including, but not limited to, through information received from Buyer’s direct or indirect customer or any other third party.  For clarity, Seller shall not be responsible for the expense of locating or removing the non-conforming goods or re-installing any repaired or replacement goods. Except as stated herein, Buyer shall not have any right of rejection or revocation of acceptance of goods.

    SPECIFICALLY EXCLUDED FROM THIS PARAGRAPH AND ANY WARRANTY ARE THE FOLLOWING, FOR WHICH SELLER SHALL HAVE NO LIABILITY WHATSOEVER: (i)  Design defects in the goods, to the extent that the goods are designed, in whole or in part, by Buyer or a third party; (ii) defects or damage caused by unauthorized or improper installation, alteration, repair, maintenance (including failure to provide appropriate maintenance), storage, handling or operation of the goods by Buyer or any third party; (iii) goods considered by Seller to be samples, prototype, development or pre-production, which are provided on an “AS IS” basis only; (iv) goods sold by Seller but manufactured by a different entity, which are sold by Seller on an “AS IS” basis, provided, however, that Seller assigns to Buyer any warranties provided by the manufacturers of such goods, to the extent that they are assignable;  (v) any product, system, or assembly not manufactured or sold by Seller and/or the integration, incorporation, interaction, connection, placement, or use of the goods in or with any such product, system, or assembly, (vi) goods that have been subject to damage attributable to or caused by: (a) misuse, abuse, or vandalism or any transit related damage; (b) acts of God or insurrection; (c) normal wear and tear; (d) or any other acts that are beyond Seller’s reasonable control. 

    THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE GIVEN AND ACCEPTED IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND AGAINST INFRINGEMENT, AND BUYER IS SOLELY RESPONSIBLE FOR THE SELECTION OF THE GOODS AND DETERMINING THE PROPER APPLICATION AND USE OF THE GOODS. THE REMEDIES OF THE PURCHASER SHALL BE LIMITED TO THOSE PROVIDED HEREIN TO THE EXCLUSION OF ANY AND ALL OTHER REMEDIES. NO AGREEMENT VARYING OR EXTENDING THE FOREGOING WARRANTIES, REMEDIES, OR THIS LIMITATION WILL BE BINDING UPON SELLER UNLESS IN WRITING AND SIGNED BY A DULY AUTHORIZED OFFICER OF SELLER.

  7. Limitation on Liability. In the event any remedy hereunder fails of its essential purpose and monetary damages may be imposed, Seller’s liability, whether founded in contract or tort (including negligence), arising out of or resulting from (i) this Contract or the performance or breach thereof, (ii) the design, manufacture, delivery, sale, repair, replacement or use of the goods, or (iii) the furnishing of any such service, except in the case of Seller’s gross negligence and/or willful and intentional misconduct, shall not exceed the cost of the goods at issue in the claim. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, SELLER SHALL NOT BE LIABLE TO BUYER OR ANY OTHER PERSON FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION,   LOSS OF PROFITS, RECALL-RELATED EXPENSES, AND LOSS OF USE OF THE GOODS.

  8. Changes. Seller shall have the right to make changes, in its sole discretion, to the design, engineering, manufacture, or material composition of its goods, component parts, raw materials and other supplies, tooling, equipment, designs, processes and methods of manufacture, but Seller will not, without Buyer's approval, make a change to operational or dimensional specifications submitted by Buyer and agreed to by Seller.

  9. Solvency and Security Interest. Buyer represents to Seller that Buyer is solvent and capable of timely fulfilling its payment and other obligations to Seller. Until the goods and any other indebtedness of Buyer have been paid for in full by Buyer, Buyer, or any agent of Buyer or third party: (i) will hold the goods subject to a security interest or lien in favor of Seller allowing for the right or re-possession by Seller to the extent permitted by applicable law, (ii) will not alter, remove, destroy, or damage any identifying mark on the goods or their packaging, and (iii) will keep the goods separate from any other products. Seller may take possession of the goods at any time after payment for the goods or any other payment owed to Seller has become due.

  10. Resale. On any resale of the goods, Buyer shall contractually limit its customer's rights and remedies against both Buyer and Seller to the same extent that Sections 6 and 7 above limit Buyer's rights and remedies.

  11. Quantities. Any claim by Buyer that Seller failed to deliver the agreed-upon quantity of goods must be submitted to Seller in writing within five days after Buyer receives the goods. If Buyer fails to do so, then it shall be conclusively presumed that the proper quantity was delivered.

  12. Permits and Compliance. Seller is not responsible for obtaining any permits, inspections, or licenses required for use, installation or operation of the goods. Seller does not make a representation or promise that the goods will conform to a law, ordinance, regulation, code or standard.

  13. Components of Another Product. If any of the goods constitute parts or components that are to be incorporated or installed in a product that is manufactured or assembled by or for Buyer, then (a) Buyer shall obtain, or cause the end-user of the product to obtain, all permits, inspections and licenses that are required for installation or operation of the product, (b) Buyer shall cause the product to conform to all applicable laws, ordinances, regulations, codes and standards and (c) Buyer shall place on the product all required or otherwise appropriate safety devices and warnings, and shall furnish to its customer all operating instructions that are necessary or desirable to prevent death, personal injury or property damage from being caused by use or operation of the product.

  14. Safety Features. Buyer shall install and operate the goods properly and according to Seller's operating instructions, if any, and shall not remove or change a safety device, warning or operating instruction that Seller placed on the goods.

  15. Tooling. All tooling to be used in the manufacture of the goods shall be and remain the property of the Seller, even if Seller imposes and Buyer pays a separately-identified charge such tooling. If the Buyer provides Seller with tooling, Seller shall hold the tooling, subject to the following: (a) risk of loss of the tooling shall at all times remain with Buyer; (b) Seller retains a security interest in the tooling to secure all obligations that Buyer at any time owes to Seller; (c) Buyer shall not have any right to possess the tooling as long as Seller has any outstanding obligation to sell to Buyer goods whose manufacture requires use of the tooling; (d) Buyer shall reimburse Seller on demand for all costs of modifications of the tooling that are made reasonably necessary by changes in the specifications for the goods; and (e) upon Seller's demand, Buyer shall immediately remove the tooling from Seller's premises, at Buyer's expense, and if Buyer fails to do so within ten days after that demand, then Seller may destroy or otherwise dispose of the tooling, without further notice or liability to Buyer.

  16. Cancellation; Returns. (a) Buyer does not have any right to cancel its agreement to buy the goods from Seller. If, however, Seller agrees in writing to permit a requested cancellation, then Buyer shall immediately pay to Seller a cancellation charge in an amount equal to the purchase price (including any tooling charge) less allowances (in amounts that Seller determines) for (1) the realizable value to Seller of any standard components that Seller purchased or ordered before cancellation, (2) the realizable scrap value to Seller of the remaining material and tooling that Seller purchased, fabricated or ordered before cancellation and (3) any direct labor costs that Seller saved by reason of the cancellation. (b) Buyer may not return any custom or labeled goods. All other resaleable and undamaged goods are subject to return only for credit and only with Seller's prior written consent. Seller may, in its sole discretion, request certain information from Buyer prior to authorizing a return, and may impose a restocking fee. (c) In addition to all other rights and remedies available to Seller, if Buyer fails to timely pay any indebtedness or to otherwise perform any obligation that Buyer at any time owes to Seller, then Seller may consider Buyer's failure to be an anticipatory repudiation of any or all outstanding contracts that provide for Seller to sell goods to Buyer, and Seller may, without liability to Buyer, cancel any or all of those outstanding contracts.

  17. Insecurity and Adequate Assurance. If Seller ever believes in good faith that it has grounds for insecurity as to Buyer's performance under any contract between Buyer and Seller to purchase goods, including this Contract, then Buyer shall provide adequate assurance of due performance within ten days after Seller demands the assurance, which shall be considered to be a reasonable time. Buyer's failure to do so shall be considered to be a repudiation by Buyer of all then-existing contracts, including the Contract, that provide for Buyer to purchase goods and/or services from Seller ("Outstanding Contracts"). "Grounds for insecurity" include, without limitation, (a) Buyer's failure to make a payment to Seller or to perform another obligation under an Outstanding Contract, (b) Buyer's insolvency, (c) a deterioration in Buyer's financial condition after an Outstanding Contract was entered into and (d) Buyer's failure to provide financial statements and other financial information to Seller promptly upon Seller's request. "Adequate assurance of due performance" includes, without limitation, providing a letter of credit or comparable security for all obligations of Buyer that then exist or that will arise in the future under all Outstanding Contracts.

  18. Intellectual Property and Confidentiality. All inventions, devices, technologies, ideas, improvements, processes, systems, software, and other works and matters that Seller designs, generates, creates or develops in the course of Seller's performance of the Contract and all samples, diagrams, plans, drawings and specifications that Seller provides to Buyer (collectively "Seller’s Intellectual Property") and all intellectual property rights embodied therein (whether patentable or not) shall be Seller's sole property, and Buyer shall have no right, title or interest in Seller’s Intellectual Property. Buyer shall not disclose or use any of Seller’s Intellectual Property or any information about Seller's business, operations or activities, or any quotation or acknowledgment except to the extent necessary for Buyer to use the goods.

  19. Indemnity. Buyer shall defend, indemnify and hold harmless Seller, its affiliates, officers, directors, employees, agents, successors and assigns from and against any and all liabilities, losses, claims, expenses and damages (including attorney and professional fees) of any kind or nature whatsoever, including, without limitation, claims for personal injury (including death) or property damage, whether such claims are premised on contract, tort or otherwise, including strict liability, arising or resulting from, connected with, or in any way related to (a) Buyer's breach of any of Buyer's obligations under these Terms of Sale, (b) Buyer's use or installation of the goods or (c) any claimed unfair competition or patent, trademark or copyright infringement or any other claim resulting from Seller's manufacture of the goods to Buyer's specifications

  20. Seller's Rights. Seller has all rights and remedies that applicable law gives to sellers. Seller's rights and remedies are cumulative, and Seller may exercise them from time to time. No waiver shall be effective unless it is in writing. The failure of Seller to require performance under any provision of this Contract shall in no way affect Seller’s right to require full performance at any subsequent time, nor Seller's waiver of a breach of any of the terms and conditions of this Contract on one occasion constitute a waiver of any other breach of the same or any term.

  21. Time for Bringing Action. Any action arising out of or related to this Contract, whether alleging breach of warranty or other breach, default or tortious conduct by Seller, must be brought by Buyer within one year after the cause of action accrues. Buyer shall pay Seller’s reasonable attorney fees, costs, and expenses incurred in enforcing any provision of this Contract.

  22. Applicable Law. The validity, interpretation, and enforcement of this Contract, matters arising out of or related to this Contract or its making, performance of breach, and any and all related matters shall be governed by and interpreted according to the laws of the State of Michigan. The provisions of the United Nations Convention on Contracts for the International Sale of Goods, and any conflict-of-laws provisions that would require application of another choice of law, are excluded. Either party may bring any action that arises out of or relates to the Contract in any federal or state court in Kent County, Michigan that has jurisdiction of the subject matter, and Buyer irrevocably consents that any such court shall have personal jurisdiction over Buyer and waives any objection that the court is an inconvenient forum.

  23. Complete Agreement; Amendment. This Contract contains the entire understanding of the parties and is intended as a final expression of their agreement and a complete statement of the terms thereof, and may not be amended, modified or otherwise supplemented unless any such amendment, modification, or supplementation is done so in writing and explicitly references this Contract and is signed by both authorized representatives of both parties hereto.

Revised June 2018

Back to top


EJ Canada, ULC Terms and Conditions of Sale

All sales of products by EJ Canada, ULC ("Seller") are made on the following terms and conditions.

  1. Offer and Acceptance. The quotation provided by Seller, as may be amended from time to time, is an offer to enter into a contract with the buyer identified on the quotation or to whom the quotation is otherwise provided (hereinafter the “Buyer”) to sell to Buyer the products described on Seller’s quotation (the “goods”).  These Terms of Sale and Seller’s quotation and order confirmation, together with any documents that are mutually executed by authorized representatives of each of the parties, constitute the “Contract”.  Neither Seller’s quotation, any order confirmation or other document issued by Seller nor Seller’s manufacture or delivery of the goods shall constitute an acceptance of any terms and conditions attached to or incorporated into any purchase order or other document issued by Buyer, and any such general terms and conditions issued by Buyer are specifically excluded and not incorporated into the Contract.  Any of the following acts by Buyer shall constitute its acceptance of Seller’s offer and these Terms of Sale in their entirety: (i) acknowledging Seller’s quotation; (ii) issuing a purchase order for the goods on the same or substantially the same terms as reflected on the face of Seller’s quotation; (iii) accepting delivery of the goods; or (iv) by other conduct which fairly recognizes the existence of a contract for the purchase and sale of the goods.  Any additional or different terms proposed by Buyer, whether in its purchase orders, request for quotation, or other written materials, or otherwise are unacceptable to and expressly rejected by Seller and are not part of the Contract and shall have no effect with respect to any purchases of the goods by Buyer.  Acceptance by Buyer of this offer and Seller’s performance under any purchase order issued by Buyer is expressly limited to and conditioned upon Buyer’s acceptance of the terms of Seller’s quotation and these Terms and Conditions of Sale exclusively.
    Quoted terms shall remain in effect for 30 days or such other time as is stated on Seller's quotation. Stenographical and clerical errors in quotations are subject to correction. Buyer shall be solely responsible for determining the materials, dimensions and quantities required for a particular project or order. Seller's quotation is based on various business factors and considerations and may not be used by any other contractor or any other person or entity without Seller's written consent.

  2. Prices. Prices do not include (i) any applicable sales, use or other tax or (ii) the cost of non-returnable pallets, separators, tops, wire-bound boxes or any other special containers. Such items may be invoiced separately.  Seller may change its quoted prices upon an unusual or unforeseen increase in Seller's costs.

  3. Payment Terms. Unless otherwise specified in Seller's quotation or acknowledgment, payment in full of the price is due at the location, and in the method, designated by Seller thirty (30) days after the date of invoice of the goods, without discount. Any payment that is not made when it is due shall accrue a finance charge of 1-1/2% per month. In the event of Buyer’s failure to timely pay or Seller’s reasonable doubt as to Buyer's ability to pay, Seller may require advance payment or collateral and may refuse fulfillment of further shipments until its demand is fulfilled.  If Buyer becomes delinquent in payment or refuses to accept C.O.D. shipments, Seller shall have the right, in addition to any and all other rights, to cancel any order of Buyer, to withhold further deliveries, and declare all unpaid amounts for goods previously delivered immediately due and payable.

  4. Delivery and Risk of Loss. Unless otherwise specified on Seller’s quotation or order confirmation, Seller shall deliver the goods FCA (Incoterms 2010) Buyer’s facility or other directed location. Title and risk of loss of the goods will pass to Buyer upon delivery of the goods as determined by the applicable delivery terms.  Delivery dates are estimated and are not guaranteed.   Time is not of the essence to any delivery of goods.  Seller will use commercially reasonable efforts to meet Buyer’s requested delivery dates, provided that Seller has been provided with sufficient lead-time.  Seller may at its discretion, ship all the goods at one time or in multiple shipments.  Seller shall have the right, but not the obligation, to determine the method of shipment and routing of the goods, unless otherwise stated in Seller's quotation or acknowledgment. Buyer or its carrier shall be responsible for supervising the loading and unloading of goods and for securing all loads for safe transport, and shall defend, indemnify and hold Seller harmless from any liability for personal injury, death or property damage resulting from the loading, transport, delivery or unloading of the goods.

  5. Unavoidable Delay. If Seller is unable to deliver goods or experiences a delay in its ability to deliver as a result of causes beyond Seller’s reasonable control (such as acts of God, natural disasters, casualty, labor trouble or disputes (including strikes or lockouts), accidents, unavailability of supplies, equipment, tooling or transportation, or Buyer's failure to approve production samples), then the estimated date of delivery or performance time shall be extended for as many days beyond the estimated date of delivery as are required to obtain removal of any such causes, and Seller shall not be liable to Buyer for any damages caused by the delay or failure to perform.

  6. Warranties and Limited Remedies. Unless otherwise set forth in the quotation, Seller warrants to Buyer only that, at the time of delivery, the goods will be free from defects in material and workmanship and will conform to any mutually agreed upon written specifications and/or drawings.  If , however, Buyer's representative agrees, either orally or in writing, to a change in or waiver of a portion of the specifications for any shipment of goods, then such goods shall be considered conforming if they conform to the specifications as changed or with such waived portion excluded. The warranty period for the goods shall be as follows:

    1. For hydrants, valves, or detectable warning plates manufactured by Seller, the warranty period shall be ten years from the date of delivery.
    2. For aluminum hatches manufactured by Seller, the warranty period shall be five years from the date of delivery.
    3. For all other goods manufactured by Seller, the warranty period shall be one year from the date of delivery.

    Buyer agrees to inspect all of the goods immediately upon receipt from Seller. In the event that Buyer believes that a good is non-conforming with the warranties specified herein, then Buyer will promptly notify Seller of the alleged defect in writing and provide to Seller as much information as is available to Buyer about the alleged non-conformity. If requested by Seller, Buyer will return to Seller all (or, if not feasible, a statistically significant sample) of the allegedly non-conforming goods and the assemblies into which such goods are incorporated, if applicable, together with any additional information or documentation reasonably requested by Seller, for the purpose of determining if the goods are non-conforming with the warranties specified herein.

    If Seller determines that the goods are non-conforming, Seller’s sole liability to Buyer and Buyer’s SOLE AND EXCLUSIVE REMEDY under this warranty (whether or not the non-conforming goods have been installed and must be the subject of a recall, customer satisfaction or other service campaign or similar action) is limited to the repair or replacement of the non-conforming goods only; provided, however, that written notice that the goods are potentially non-conforming must be given by Buyer to Seller within five (5) days after the delivery of the goods to Buyer or, if Buyer’s inspection of the goods could not have uncovered the potential non-conformance, within thirty (30) days after Buyer knew or reasonably should have known that the goods were potentially non-conforming, including, but not limited to, through information received from Buyer’s direct or indirect customer or any other third party.  For clarity, Seller shall not be responsible for the expense of locating or removing the non-conforming goods or re-installing any repaired or replacement goods. Except as stated herein, Buyer shall not have any right of rejection or revocation of acceptance of goods.

    SPECIFICALLY EXCLUDED FROM THIS PARAGRAPH AND ANY WARRANTY ARE THE FOLLOWING, FOR WHICH SELLER SHALL HAVE NO LIABILITY WHATSOEVER: (i)  Design defects in the goods, to the extent that the goods are designed, in whole or in part, by Buyer or a third party; (ii) defects or damage caused by unauthorized or improper installation, alteration, repair, maintenance (including failure to provide appropriate maintenance), storage, handling or operation of the goods by Buyer or any third party; (iii) goods considered by Seller to be samples, prototype, development or pre-production, which are provided on an “AS IS” basis only; (iv) goods sold by Seller but manufactured by a different entity, which are sold by Seller on an “AS IS” basis, provided, however, that Seller assigns to Buyer any warranties provided by the manufacturers of such goods, to the extent that they are assignable;  (v) any product, system, or assembly not manufactured or sold by Seller and/or the integration, incorporation, interaction, connection, placement, or use of the goods in or with any such product, system, or assembly, (vi) goods that have been subject to damage attributable to or caused by: (a) misuse, abuse, or vandalism or any transit related damage; (b) acts of God or insurrection; (c) normal wear and tear; (d) or any other acts that are beyond Seller’s reasonable control.  

    THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE GIVEN AND ACCEPTED IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND AGAINST INFRINGEMENT, AND BUYER IS SOLELY RESPONSIBLE FOR THE SELECTION OF THE GOODS AND DETERMINING THE PROPER APPLICATION AND USE OF THE GOODS. THE REMEDIES OF THE PURCHASER SHALL BE LIMITED TO THOSE PROVIDED HEREIN TO THE EXCLUSION OF ANY AND ALL OTHER REMEDIES. NO AGREEMENT VARYING OR EXTENDING THE FOREGOING WARRANTIES, REMEDIES, OR THIS LIMITATION WILL BE BINDING UPON SELLER UNLESS IN WRITING AND SIGNED BY A DULY AUTHORIZED OFFICER OF SELLER.

  7. Limitation on Liability. In the event any remedy hereunder fails of its essential purpose and monetary damages may be imposed, Seller’s liability, whether founded in contract or tort (including negligence), arising out of or resulting from (i) this Contract or the performance or breach thereof, (ii) the design, manufacture, delivery, sale, repair, replacement or use of the goods, or (iii) the furnishing of any such service, except in the case of Seller’s gross negligence and/or willful and intentional misconduct, shall not exceed the cost of the goods at issue in the claim.  NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, SELLER SHALL NOT BE LIABLE TO BUYER OR ANY OTHER PERSON FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION,   LOSS OF PROFITS, RECALL-RELATED EXPENSES, AND LOSS OF USE OF THE GOODS.

  8. Changes. Seller shall have the right to make changes, in its sole discretion, to the design, engineering, manufacture, or material composition of its goods, component parts, raw materials and other supplies, tooling, equipment, designs, processes and methods of manufacture, but Seller will not, without Buyer's approval, make a change to operational or dimensional specifications submitted by Buyer and agreed to by Seller.

  9. Solvency and Security Interest. Buyer represents to Seller that Buyer is solvent and capable of timely fulfilling its payment and other obligations to Seller.  Until the goods and any other indebtedness of Buyer have been paid for in full by Buyer, Buyer, or any agent of Buyer or third party: (i) will hold the goods subject to a security interest or lien in favour of Seller allowing for the right or re-possession by Seller to the extent permitted by applicable law, (ii) will not alter, remove, destroy, or damage any identifying mark on the goods or their packaging, and (iii) will keep the goods separate from any other products.  Seller may take possession of the goods at any time after payment for the goods or any other payment owed to Seller has become due.

  10. Resale. On any resale of the goods, Buyer shall contractually limit its customer's rights and remedies against both Buyer and Seller to the same extent that Sections 6 and 7 above limit Buyer's rights and remedies.

  11. Quantities. Any claim by Buyer that Seller failed to deliver the agreed-upon quantity of goods must be submitted to Seller in writing within five days after Buyer receives the goods.  If Buyer fails to do so, then it shall be conclusively presumed that the proper quantity was delivered.

  12. Permits and Compliance. Seller is not responsible for obtaining any permits, inspections, or licenses required for use, installation or operation of the goods.  Seller does not make a representation or promise that the goods will conform to a law, ordinance, regulation, code or standard.

  13. Components of Another Product. If any of the goods constitute parts or components that are to be incorporated or installed in a product that is manufactured or assembled by or for Buyer, then (a) Buyer shall obtain, or cause the end-user of the product to obtain, all permits, inspections and licenses that are required for installation or operation of the product, (b) Buyer shall cause the product to conform to all applicable laws, ordinances, regulations, codes and standards and (c) Buyer shall place on the product all required or otherwise appropriate safety devices and warnings, and shall furnish to its customer all operating instructions that are necessary or desirable to prevent death, personal injury or property damage from being caused by use or operation of the product.

  14. Safety Features. Buyer shall install and operate the goods properly and according to Seller's operating instructions, if any, and shall not remove or change a safety device, warning or operating instruction that Seller placed on the goods.

  15. Tooling. All tooling to be used in the manufacture of the goods shall be and remain the property of the Seller, even if Seller imposes and Buyer pays a separately-identified charge such tooling.  If the Buyer provides Seller with tooling, Seller shall hold the tooling, subject to the following: (a) risk of loss of the tooling shall at all times remain with Buyer; (b) Seller retains a security interest in the tooling to secure all obligations that Buyer at any time owes to Seller; (c) Buyer shall not have any right to possess the tooling as long as Seller has any outstanding obligation to sell to Buyer goods whose manufacture requires use of the tooling; (d) Buyer shall reimburse Seller on demand for all costs of modifications of the tooling that are made reasonably necessary by changes in the specifications for the goods; and (e) upon Seller's demand, Buyer shall immediately remove the tooling from Seller's premises, at Buyer's expense, and if Buyer fails to do so within ten days after that demand, then Seller may destroy or otherwise dispose of the tooling, without further notice or liability to Buyer.

  16. Cancellation; Returns. (a) Buyer does not have any right to cancel its agreement to buy the goods from Seller.  If, however, Seller agrees in writing to permit a requested cancellation, then Buyer shall immediately pay to Seller a cancellation charge in an amount equal to the purchase price (including any tooling charge) less allowances (in amounts that Seller determines) for (1) the realizable value to Seller of any standard components that Seller purchased or ordered before cancellation, (2) the realizable scrap value to Seller of the remaining material and tooling that Seller purchased, fabricated or ordered before cancellation and (3) any direct labor costs that Seller saved by reason of the cancellation.

    (b) Buyer may not return any custom or labeled goods.  All other resaleable and undamaged goods are subject to return only for credit and only with Seller's prior written consent.  Seller may, in its sole discretion, request certain information from Buyer prior to authorizing a return, and may impose a restocking fee.

    (c) In addition to all other rights and remedies available to Seller, if Buyer fails to timely pay any indebtedness or to otherwise perform any obligation that Buyer at any time owes to Seller, then Seller may consider Buyer's failure to be an anticipatory repudiation of any or all outstanding contracts that provide for Seller to sell goods to Buyer, and Seller may, without liability to Buyer, cancel any or all of those outstanding contracts.

  17. Insecurity and Adequate Assurance. If Seller ever believes in good faith that it has grounds for insecurity as to Buyer's performance under any contract between Buyer and Seller to purchase goods, including this Contract, then Buyer shall provide adequate assurance of due performance within ten days after Seller demands the assurance, which shall be considered to be a reasonable time.  Buyer's failure to do so shall be considered to be a repudiation by Buyer of all then-existing contracts, including the Contract, that provide for Buyer to purchase goods and/or services from Seller ("Outstanding Contracts").  "Grounds for insecurity" include, without limitation, (a) Buyer's failure to make a payment to Seller or to perform another obligation under an Outstanding Contract, (b) Buyer's insolvency, (c) a deterioration in Buyer's financial condition after an Outstanding Contract was entered into and (d) Buyer's failure to provide financial statements and other financial information to Seller promptly upon Seller's request.  "Adequate assurance of due performance" includes, without limitation, providing a letter of credit or comparable security for all obligations of Buyer that then exist or that will arise in the future under all Outstanding Contracts.

  18. Intellectual Property and Confidentiality. All inventions, devices, technologies, ideas, improvements, processes, systems, software,  and other works and matters that Seller designs, generates, creates or develops in the course of Seller's performance of the Contract and all samples,  diagrams, plans, drawings and specifications that Seller provides to Buyer (collectively "Seller’s Intellectual Property") and all intellectual property rights embodied therein (whether patentable or not) shall be Seller's sole property, and Buyer shall have no right, title or interest in Seller’s Intellectual Property.  Buyer shall not disclose or use any of Seller’s Intellectual Property or any information about Seller's business, operations or activities, or any quotation or acknowledgment except to the extent necessary for Buyer to use the goods.

  19. Indemnity. Buyer shall defend, indemnify and hold harmless Seller, its affiliates, officers, directors, employees, agents, successors and assigns from and against any and all liabilities, losses, claims, expenses and damages (including attorney and professional fees) of any kind or nature whatsoever, including, without limitation, claims for personal injury (including death) or property damage, whether such claims are premised on contract, tort or otherwise, including strict liability, arising or resulting from, connected with, or in any way related to (a) Buyer's breach of any of Buyer's obligations under these Terms of Sale, (b) Buyer's use or installation of the goods or (c) any claimed unfair competition or patent, trademark or copyright infringement or any other claim resulting from Seller's manufacture of the goods to Buyer's specifications.

  20. Seller's Rights.  Seller has all rights and remedies that applicable law gives to sellers.  Seller's rights and remedies are cumulative, and Seller may exercise them from time to time.  No waiver shall be effective unless it is in writing.  The failure of Seller to require performance under any provision of this Contract shall in no way affect Seller’s right to require full performance at any subsequent time, nor Seller's waiver of a breach of any of the terms and conditions of this Contract on one occasion constitute a waiver of any other breach of the same or any term.

  21. Time for Bringing Action. Any action arising out of or related to this Contract, whether alleging breach of warranty or other breach, default or tortious conduct by Seller, must be brought by Buyer within one year after the cause of action accrues.  Buyer shall pay Seller’s reasonable attorney fees, costs, and expenses incurred in enforcing any provision of this Contract.

  22. Applicable Law.  The validity, interpretation, and enforcement of this Contract, matters arising out of or related to this Contract or its making, performance of breach, and any and all related matters shall be governed by and interpreted according to the laws of the Province of Ontario and the federal laws of Canada applicable therein.  The provisions of the United Nations Convention on Contracts for the International Sale of Goods, and any conflict-of-laws provisions that would require application of another choice of law, are excluded.  Either party may bring any action that arises out of or relates to the Contract in any court in the Province of Ontario that has jurisdiction of the subject matter, and Buyer irrevocably consents that any such court shall have personal jurisdiction over Buyer and waives any objection that the court is an inconvenient forum.

  23. Complete Agreement; Amendment. This Contract contains the entire understanding of the parties and is intended as a final expression of their agreement and a complete statement of the terms thereof, and may not be amended, modified or otherwise supplemented unless any such amendment, modification, or supplementation is done so in writing and explicitly references this Contract and is signed by both authorized representatives of both parties hereto.  

Revised June 2018

Back to top

envelope
Email us Today