All descriptions, quotations, proposals, offers, acknowledgments, acceptances and sales of goods and related services hereinafter referred to as “Products” from Zedaro Inc. (“Seller”) to you (“Buyer”) are subject to these General Terms and Conditions of Sale set forth herein, which together constitute Seller’s contract for sale of the products (“Contract”). Seller’s acceptance of any offer by Buyer is expressly conditioned on Buyer’s assent to the express terms contained herein, whether additional to or different from those contained in Buyer’s purchase order or any other form or document previously or hereafter supplied by Buyer to Seller. IN THE ABSENCE OF WRITTEN ACCEPTANCE OF SELLER’S GENERAL TERMS AND CONDITIONS OF SALE BY BUYER, THE PLACING OF A PURCHASE ORDER, ACCEPTANCE OF OR PAYMENT FOR ANY OF THE PRODUCTS HEREUNDER BY BUYER OR HIS AGENT SHALL CONSTITUTE ACCEPTANCE OF THESE GENERAL TERMS AND CONDITIONS OF SALE.
All quotations by Seller are subject to change or withdrawal without prior notice to Buyer unless otherwise specified in the quotation. Quotations are subject to Seller’s approval of Buyer’s credit. Any proposal for additional or different terms in any document supplied by Buyer or any attempt by Buyer to vary in any degree any of the terms of the offer in Buyer’s acceptance is hereby objected to and rejected.
Except as otherwise agreed to in writing and signed by Seller, purchases are payable in advance or standard net 30-day terms from invoice date. Seller reserves the right to require a payment of 100% of the order price on special orders when the order is placed. This deposit is forfeitable in the event of cancellation on special order items. Seller may, at any time, suspend performance or require full or partial payment in advance, or security or other adequate assurance satisfactory to Seller when, in Seller’s sole discretion, the financial condition of Buyer does not justify different payment terms. If Buyer defaults in any payment when due under this Contract or any other contract, Seller, at its option and without prejudice to its other lawful remedies, may defer delivery or cancel this Contract. Delinquent accounts will be charged interest at the rate of 1.5% per month, or the maximum allowed by applicable law, whichever is lower. Buyer shall not be entitled to set-off any amounts due Buyer against any amounts due Seller under this Contract. All costs and expenses incurred by Seller as a result of nonpayment or late payment by Buyer, including collections, costs, interest and reasonable attorneys’ fees, shall be paid by the Buyer.
3. PRICES AND TAXES
Prices and terms are subject to change by Seller without notice. All prices are F.O.B. shipping point unless otherwise agreed upon by Buyer and Seller. All license fees, tariffs, custom duties and other such charges shall be paid by the Buyer. There shall be added to the prices the amount of any sales, excise, use, or other taxes, however designated, levied or based on such prices or on this Contract or the sale or use of the products, all of which shall be paid by the Buyer. If Buyer claims that the Products are exempt from any particular tax, Buyer must provide Seller with a tax exemption certificate acceptable to the tax authorities at the time the order is placed.
Transportation for all shipments will be arranged for by Seller at its sole discretion. All orders are shipped using a carrier selected by Seller and billed separately to Buyer by Seller. No allowances are given for freight with respect to Products picked up by Buyer.
Orders may be picked up at Seller’s location provided that the items are in stock and it is designated at the time of ordering.
Claims for damaged, lost shipments or discrepancies in shipments must be reported to the Seller within five (5) working days from receipt of Products or anticipated receipt based on forwarder’s tracking data. Seller takes no responsibility for insuring its shipments. Buyers are encouraged to carry their own applicable shipping insurance coverage.
Only returns authorized by Seller’s Customer Care Team will be accepted and such authorization must be obtained prior to returning the shipment to Seller otherwise no returns or chargebacks are permitted.
All returns must be accompanied by the Return Material Authorization (RMA) number, issued by Seller, and clearly marked on the outside of the package. Returns not marked with a return authorization number will be refused and returned to the originator at their expense. The return transportation will be prepaid by Seller. All returns will be inspected. Once the inspection has been completed and confirmed, credit will be issued.
After the purchase order is placed, no cancellations or changes of any kind shall be effective unless agreed to in writing by Seller. All changes that are accepted by Seller remain subject to adjustment in prices and delivery dates. All cancellations that are accepted by Seller are subject to cancellation charges which will be determined by Seller and will reflect, among other factors, the expenses already incurred, and commitments made by Seller, sales and administrative overhead, and profits. Seller shall have the absolute right to cancel the order upon (i) material breach of any of these Terms and Conditions of Sale by Buyer, or (ii) failure by Buyer to make any payment or (iii) insolvency of Buyer, the filing of a voluntary petition in bankruptcy by Buyer, the filing of an involuntary petition to have the Buyer declared bankrupt, the appointment of a receiver or trustee for Buyer or the execution by Buyer of an assignment for the benefits of creditors, or (iv) the discontinuance of business by Buyer or the sale by Buyer of the bulk of its assets other than in the usual course of business. Upon cancellation, Seller shall be entitled to a cancellation charge as described above.
Cancellation of blanket orders for Stock Standard products will result in a corrected billing issued to cover quantity price differential, and a 25% cancellation charge will be issued for all items not shipped and billed. The cancellation charge may be waived if a new blanket order is placed at the time of cancellation for an equal or greater net order value. Blanket orders for Non-Stock Standards and Specials cannot be cancelled.
7. SECURITY INTEREST
Seller retains, until Buyer performs all of its obligations hereunder, including without limitation, payment in full of the Contract price, a purchase money security interest in the products, including all accessories and replacements thereto and the proceeds thereof, to secure performance of all obligations of Buyer. Buyer agrees to permit Seller to execute and record any financing statement, or other documents necessary to take any other action deemed necessary or desirable by Seller in order to protect Seller’s security interest. Buyer shall not attempt to transfer any interest in the products until said Contract price has been paid in full.
Failure of Buyer to perform its obligations hereunder, including, but not limited to payment in full of the Contract price, insolvency, bankruptcy, assignment for the benefit of creditors or dissolution, liquidation, or closing of a business of Buyer, shall constitute a default under this Agreement and shall enable the Seller to exercise any and all remedies of a secured party under the Uniform Commercial Code as enacted in the State of Michigan from time to time. If Seller retains a collection agency and/or attorney to collect unpaid amounts, Seller may invoice Buyer for, and Buyer will pay all costs of collection, including without limitation reasonable attorney fees.
Except as otherwise provided in writing by Seller, Seller provides no warranty express or implied. It shall be the duty and responsibility of the Buyer to inspect and test the products to determine their suitability for their end use application or purpose. Seller shall not be liable under this warranty for defects caused by (i) improper handling or storage; (ii) accident, damage, abuse or misuse; (iii) abnormal or unusual operating conditions or applications; (iv) operating conditions or applications above the rated capacity of the product; (v) using for a purpose or application materially different from that for which the products were designed or (vi) alteration not authorized by Seller.
THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESSED, IMPLIED, STATUTORY OR ARISING BY COURSE OF DEALING OR PERFORMANCE, CUSTOM OR USAGE IN THE TRADE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES WILL SELLER BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMANGES, OR FOR ANY OTHER LOSS, DAMAGE OR EXPENSE OF ANY KIND, INCLUDING LOSS OF PROFITS, ARISING IN CONNECTION WITH THE SALE OR USE OF PRODUCTS. SELLERS SOLE LIABILITY AND THE BUYER’S SOLE REMEDIY IS LIMITED TO EITHER (i) REPAIR OR REPLACEMENT OF DEFECTIVE PARTS OR PRODUCTS, OR (ii) AT SELLERS OPTION RETURN OF THE PRODUCTS TO SELLER AND REFUND OF PURCHASE PRICE. SUCH REMEDY SHALL BE BUYER’S ENTIRE AND EXCLUSIVE REMEDY, IN THE EVENT OF BREACH OR WARRANTY OR NEGLIGENCE OF SELLER.
10. LIMITATION OF SELLER’S LIABILITY
SELLER’S LIABILITY TO BUYER ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT, REGARDLESS OF THE FORM OF THE CAUSE OR ACTION, WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE OR STRICT LIABILITY, STATUTE OR OTHERWISE, SHALL IN NO EVENT: (A) EXCEED THE PRICE ALLOCABLE TO THE PRODUCTS OR ITEM THEREOF WHICH GIVES RISE TO THE CLAIM; OR (B) INCLUDE ANTICIPATED OR ALLEGED PROFITS, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES ATTRIBUTABLE TO THIRD PARTY CLAIMS. SELLER SHALL NOT BE LIABLE FOR PENALTIES OR LIQUIDATED DAMAGES OF ANY DESCRIPTION. ANY ACTION AGAINST SELLER, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT MUST BE COMMENCED BY BUYER WITHIN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
11. FORCE MAJEURE
Fulfillment of this Contract by Seller is contingent upon the availability of materials. Seller shall not be liable for delay in delivery or for non-delivery in whole or in part caused by the occurrence of any contingency beyond the control of either the Seller or suppliers to the Seller, including but not limited to war, sabotage, acts of civil disobedience, failure or delay in transportation, act of any government or agency or subdivision thereof, judicial action, labor dispute, fire, accident, explosion, epidemic, quarantine, restrictions, storm, flood, earthquakes, acts of God, shortage of labor, fuel, raw materials or machinery or technical failure where Seller has exercised ordinary care in the prevention thereof. If Seller is unable, due to a force majeure event, to supply the total quantity of products specified in orders, from more than one customer, Seller may allocate production and deliveries among Sellers customers, (including Buyer) without liability for any failure of performance which may result therefrom.
12. RISK OF LOSS
Risk of loss or damage to the products shall pass to Buyer upon Seller’s delivery of the products to a carrier at Seller’s plant. Confiscation or destruction of, or damage to, the products following delivery to the carrier shall not in any way affect the liability of Buyer to pay the Contract price. Claims for products confiscated, damaged, or lost in transit should be made by the Buyer to the carrier, as Seller’s responsibility ceases upon tender to the carrier.
Buyer may neither delegate its performance nor assign any if its rights or claims under this Contract part without the written consent of the Seller, which consent may be granted or withheld in Seller’s sole discretion. Any attempt to assign any duties, right or obligations of this Contract without such consent shall be considered null and void.
14. INFRINGEMENT; INDEMNIFICATION
Seller does not warrant that the use or sale of the products delivered under this Contract will not infringe the claim of any patents covering the products themselves or their use in combination with other products or in operation of any process. The sale of products under this Contract is not intended as an inducement to infringe nor shall it be construed as recommending the infringement of any patent, extending any license, express or implied, or assuming any liability under any issued or pending patent. Buyer shall hold Seller harmless from (a) any damage, injury or claim arising from any fault or neglect of Buyer, Buyer’s employees, agents and licensees, or any person not a party hereto, and (b) to the extent that products are manufactured according to the Buyer’s specifications and/or drawings, any charge that said products infringe any patent or other proprietary right of any other person.
15. PATENTS AND TRADEMARKS
All patent, design, trademark, service mark, copyright and other industrial or intellectual property rights of Seller of whatever nature in respect of the products, any of their constituent parts, their packaging or other material supplied with the products shall remain the absolute property of the Seller. Seller does not grant Buyer a license to use Seller’s intellectual properties or trademarks.
Seller and Buyer hereby agree that all information submitted to Buyer, including but not limited to all technical advice, manufacturing processes, drawings and test results, to be proprietary information and received and held by Buyer in strict confidence and used for no purpose other than the purchase of products from Seller and Buyer’s use of such products.
If any provision(s) of this Contract shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
18. APPLICABLE LAW; DISPUTE RESOLUTION
This agreement shall be governed by the laws of the Provinces of Canada, excluding its conflicts of laws provisions and excluding the United Nations Convention on the International Sale of Goods. Any controversy, claim or dispute arising out of or relating to this Contract or its breach (“Dispute”) not disposed of by written mutual agreement shall be settled by binding arbitration. In any Dispute in which the amount of controversy is less than $250,000, there shall be one arbitrator agreed to by the parties; in all other cases there shall be three arbitrators. One of the arbitrators shall be selected by each party and the third arbitrator shall be selected by the two party-appointed arbitrators. The parties will pay their own attorney’s fees and share the other costs of arbitration equally, subject to final apportionment by the arbitrators. The arbitrators will apply the law set forth herein as governing this Contract. The decision of the arbitrators will be final and conclusive upon the parties. Neither party will institute any action or proceeding against the other party in any court concerning any Dispute, except that a judgment upon an award rendered by the arbitrators may be entered in any court of competent jurisdiction. Pending resolution of any such Dispute, Seller shall not be obligated to continue performance and will not be in default of its obligations under this Contract if it determines in its good faith business judgment that it is not commercially reasonable or feasible to proceed.
19. ENTIRE AGREEMENT; AMENDMENT
This Contract constitutes the complete and exclusive statement(s) of the agreement between the parties and supersedes all prior proposals, oral or written, and all other communications between the parties relating to the subject matter. This Contract may only be amended in writing, executed by a duly authorized representative of each party. In the absence of such an amendment, commencement of performance by Seller shall be for Buyer’s convenience only and shall not be deemed acceptance of any proposed amendment by Seller.