1. Application of Terms and Conditions
These terms and conditions (“Terms and Conditions”) shall govern all sales of products (“Products”) by CESCO Electrical Supply Ltd. (the “Seller”) to the Customer pursuant to a quotation/proposal issued by Seller to Customer and signed by Customer and Seller or a purchase order or other similar documentation or offers provided by Customer to Seller and accepted by Seller (each, an “Order”). The Customer agrees to be bound by these Terms and Conditions.
These Terms and Conditions are a complete, final and exclusive agreement between the parties and supersede any and all other previous quotations, negotiations, representations and agreements, whether written or oral, by either party related to the subject matter hereof. These Terms and Conditions Agreement may be added to, modified, superseded or otherwise altered only by written agreement signed by the Seller.
2. Governing Law
These Terms and Conditions and performance hereunder shall be deemed to have been made in the Province of British Columbia and shall be governed by the laws of the Province of British Columbia and the applicable laws of Canada. In the event of a dispute, the parties hereby agree to attorn to the exclusive jurisdiction of the courts of the Province of British Columbia. The applicability of the UN Convention on Contracts for the International Sale of Goods and the International Sale of Goods Act (British Columbia) are hereby expressly waived by the parties and will not apply to these Terms and Conditions.
3. Orders and Payment
Quotations provided by the Seller will be valid for the period of time stated in the quotation and if no time period is stated for a period of 30 days from the date on the quotation. The Seller will issue an invoice to the Customer for each Order, which will be delivered to the Customer after the Seller’s acceptance of the Order in accordance with these Terms and Conditions. All Orders are subject to acceptance by the Seller and will not be binding on the Seller until written, email, or verbal confirmation of acceptance is communicated by the Seller. The Seller will price and invoice the Customer in Canadian dollars.
The purchase price of Products shipped is due 30 days from the date of invoice, unless a different due date is specified in a written document signed by an authorized representative of Seller. Late payments for invoices are subject to an interest charge of the lesser rate of 2% per month (or 26.8% per annum), or the maximum amount permitted by applicable law. Customer is liable to Seller for any expenses incurred to collect past due amounts, including reasonable legal fees and court costs.
Terms of payment are within the Seller’s sole discretion and regardless of any prior approval of credit, the Seller may modify the foregoing terms of payment, including, but not limited to, placing the account on a letter-of-credit basis, requiring full or partial payment in advance and/or suspending deliveries of the Products until the Customer provides assurance of performance reasonably satisfactory to the Seller if, in the Seller’s sole judgment, the
financial condition of the Customer at any time prior to shipment so warrants.
4. Cancellation of Order by Customer
If for any reason it becomes necessary for Customer to cancel an Order placed with and accepted by Seller, such Order will be canceled only upon Seller’s consent and in such event Customer agrees to indemnify Seller against all costs, expenses and losses in connection with such cancellation.
5. Prices and Applicable Taxes
Unless otherwise stated by the Seller, it is understood and agreed that purchase prices and quotations do not include government taxes, levies, customs duties, brokerage fees, insurance premiums, transportation costs or any other costs and levies charged, assessed or levied in connection with the sale of the Products or the transportation and delivery of the Products (“Additional Charges”) and that the Customer will be solely responsible for all such Additional Charges. Customer shall reimburse Seller for any such Additional Charges paid by Seller.
The Seller reserves the right to alter the price applicable to any Products unshipped at the date of any such alteration. The Seller may increase the purchase price of the Products on any increase in the cost of raw materials to the Seller.
All prices are FCA (INCOTERMS 2010) Seller’s warehouse or Seller’s supplier’s warehouse, as the case may be.
It is understood and agreed that the Products shall be considered delivered to the Customer when the Seller makes the Products available to the Customer at the Seller’s warehouse or the Seller’s supplier’s warehouse.
7. Title and Risk
Risk and title to the Products shall pass to the Customer upon commencement of the loading of the Products on the carrier at the Seller’s Warehouse or the Seller’s supplier’s warehouse, as the case may be.
Any Products availability or shipment dates given by the Seller are estimates only and the Seller is not liable for any loss, damage, cost or expense arising from any delay in Products availability or shipment.
Any unshipped Products or balance of Products, resulting from the Customer’s refusal or inability to take delivery, remaining in the Seller’s possession after the expiry date of 30 days (the “Expiry Date”) will be invoiced to the Customer on the usual terms as though the Products had been shipped. If any Products remain unshipped after the Expiry Date, the Customer shall pay the Seller storage charges.
9. Packing and Packaging
All Products will be packed and packaged in accordance with standard commercial packing and packaging methods of Seller. Any nonstandard or special packing or packaging requested by Customer shall be at Customer’s sole expense and must be approved by Seller in writing.
10. Returned Products
No Products may be returned to the Seller without the Seller’s written authorization which authorization may be refused in the Seller’s sole unfettered discretion. Products authorized to be returned by the Seller shall be returned at the Customer’s expense. The Seller, having inspected the returned Products, may issue a credit for the returned Products in an amount determined by the Seller in accordance with the condition of the Products.
Except as otherwise provided herein, Seller agrees to use its commercially reasonable efforts to ensure that Products shall be free from material and/or workmanship defects, and shall be of merchantable and salable quality when made available to the Customer or its carrier at Seller’s facility. Warranties for the Products sold hereunder are limited to: (a) those (if any) provided in writing for the benefit of Customer by Seller’s supplier or the original manufacturer, and (b) those (if any) provided by Seller for Customer’s benefit in a separate written document
prepared and signed by Seller.
Other than as specifically set out herein, the parties expressly agree that the Products will be purchased on an “as is, where is” basis, and Seller makes no representations, warranties or conditions, whether express or implied by law, uses of trade, course of dealing or otherwise (including, without limitation, any implied warranties or warranties of fitness for a particular purpose) and Seller express disclaims all other representations, warranties and conditions to the fullest extent permitted under applicable law.
12. Limitation of Liability
Notwithstanding any other provision in these terms and conditions, regardless of the legal theory (e.g., breach of contract or warranty, tort (including negligence), strict liability, statute or otherwise): (a) in no event shall Seller be liable to Customer or any third party for any and all claims related to the breach of these terms and conditions, non-delivery or the provision of Products covered by these terms and conditions, in excess of the total price paid
by Customer to Seller for the Products under the applicable Order; and (b) Seller shall not be liable for any indirect, special, incidental, punitive, exemplary or consequential loss or damages, or economic loss, including but not limited to loss of actual or anticipated revenue or profits, loss of production, loss of data or damage to business reputation.
13. Seller’s Security Interest
Customer hereby grants Seller a security interest in the Products purchased hereunder, as security for the full payment of the purchase price of such Products. If Seller requests, Customer will execute any financing statement or other documents as required by Seller and pay all related costs necessary to protect Seller’s security interest.
Customer agrees that until the full purchase price is paid, the Products: (a) will not be altered, misused, abused, wasted or allowed to deteriorate; (b) will be insured against all risks to which they are exposed, including, but not limited to fire and theft: and (c) will not be sold, transferred or disposed of or be subjected to any third person, either voluntarily or involuntarily. In the event Customer fails to comply with these terms and conditions,
including the terms of payment set out herein, Seller shall have the right, without prejudice to any of its other rights granted by law, equity or contained herein, to: (a) enter Customer’s premises without notice and take possession of the Products, or (b) require Customer to make the Products available to Seller for repossession at a place designated by Seller, at Customer’s expense.
14. Force Majeure
The Seller shall not be liable for any delay or failure in performance caused by circumstances beyond its reasonable control, which make such performance commercially impractical including, but not limited to, acts of God, fire, flood, acts of war, government action, pandemic or epidemic, accident, labour difficulties or shortage, inability to obtain materials, equipment or transportation.
15. Intellectual Property
The parties agree that Seller is the exclusive owner of all intellectual property rights relating to Seller and the Products, including but not limited to, trademarks, designs and logos, trade secrets, copyrights, trade names, symbols, specifications, patents, drawings, processes, know-how, trade secrets and other proprietary information therein, and all goodwill associated with any of the foregoing (the “Intellectual Property”). All intellectual property rights in the Intellectual Property shall remain the exclusive right, title and interest of Seller.
The Seller may immediately terminate the Order in whole or in part at any time by written notice to Customer if (a) Customer is in default to comply with any of its obligations pursuant to these Terms and Conditions; (b) Customer becomes insolvent, makes an assignment for the benefit of creditors or has a receiver or trustee of its property appointed; (c) Customer engages or has engaged in fraudulent, hazardous or misleading commercial practices or has acted in a manner that Seller deems reasonably likely to harm its reputation; or (d) in its sole
discretion and for any reason whatsoever, at any time on 60 days written notice to Customer.
Notwithstanding the termination or expiration of this Agreement, the Customer shall not be released or discharged from any indebtedness then due and owing to Seller.
17. Personal Information and Privacy