Harvan Manufacturing Limited Standard Terms & Conditions of Sale and Disclosure
Conditions of Sale
- Formation of "The Contract#
- In these conditions the following definitions apply:
- 'the Company'- Harvan Manufacturing Ltd.
- 'the Customer' -the person(s), firm or company who purchases the Goods or from the Company.
- 'Company Documentation' -any quotation, or response to request for quotation or acceptance or acknowledgement of order or response to the Customer's order issued by or on behalf of the Company.
- 'Contract Terms' -the terms and conditions set out below and any terms and conditions set out or identified in the Company Documentation.
- The Contract Terms may be varied only by express agreement in writing by the Company;
- Where the Company supplies Goods under a blanket order received from the Customer, the blanket order and each release shall be subject to the Contract Terms;
- The contract terms shall be governed by and construed in accordance with the law of Ontario, Canada where the Company is located.
Unless otherwise expressly stated in writing,:
- The price stated is inclusive of all discounts but exclusive of (i) packaging, delivery and carriage charges which shall be payable in addition to the price stated if delivery is requested by the Customer, and (ii) Harmonized Sales Tax and any other taxes and duties which shall be paid by the Customer at the rate and in the manner prescribed by law from time to time;
- The Company may adjust the price stated to take account of any change in any specification made at the request of the Customer and agreed by the Company or any delay caused by the Customer.
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Unless otherwise expressly stated in writing,
- Prices are due and payable to, and at such place and in such currency as may be designated by the Company, without set-off or counterclaim in immediately available funds 30 days from the date of the Company's invoice.
- On the Customer failing to make full payment when due, the Company shall be entitled to: (i) require future payments in advance of delivery; or (ii)refuse to make delivery of any Goods without incurring any liability to the Customer; or (iii) terminate the contract or any outstanding release; or (iv) charge (without prejudice to any other rights of the Company) interest on the amount due at 4% per annum above the base rate from time to time of the Bank of Canada.
- The Company will endeavor to complete the contract or deliver the Goods within the time agreed (if any) and if no time is agreed, within a reasonable time, and in the quantities agreed (if any) but it shall not be liable for any liabilities arising as a result of any delay in the completion of the contract or delivery of the Goods or discrepancies in quantities delivered.
- If the Customer fails to take delivery of Goods when they are ready for delivery the Company may, at its option, either store them itself or have them stored by third parties on such terms as the Company may in its absolute discretion think fit. The cost of storage together with any additional insurance or handling charges will be added to and form part of the price for the Goods payable by the Customer.
- Title and Risk
- Title to Goods shall not pass to the Customer until the purchase price of the Goods have been paid in full. Until title to the Goods has passed to the Customer or until delivery of the Goods to a third party pursuant to the permission given below, the Customer will hold the Goods for the Company, will not obliterate any identifying mark on the Goods or their packaging and will keep the Goods separate from any other goods.
- The Company may, at any time after payment for the Goods or any other payment due and owing to the Company under the Contract Terms has become due, take possession of the Goods.
- Risk of damage to or loss of the Goods shall pass to the Customer: (i) in the case of Goods to be delivered at the Company's premises, at the time when the Company notified the Customer that the Goods are available for collection; or (ii) in the case of Goods to be delivered otherwise than at the Company's premises, at the time of delivery or, if the Customer fails to take delivery of the Goods, at the time when the Company has tendered delivery of the Goods.
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- Information and Intellectual Property
- Where Goods are manufactured in accordance with information or drawings supplied by the Customer or to its design or specification or where standard Goods of the Company are altered in accordance with the Customers instructions: (i) no warranty is given by the Company as to the suitability or fitness for purpose of the Goods, and (ii) the Customer shall indemnify the Company against all liabilities in relation to: (1) such Goods infringing any intellectual property right including without limitation patents, registered designs and copyright ("IPR#); (2) any defect in the Goods due to faults or omissions in such information, drawings, design, specification or instructions.
- All IPR, designs, samples, tooling, drawings, models and similar items used by the company in relation to the Goods are and shall remain the property of the Company and such materials shall be returned by the Customer on demand, and shall be treated as confidential and shall not be used, copied or disclosed to any third party without the Company's prior written consent. No right or license is granted to the Customer under any IPR except the right to use or re-sell Goods in the ordinary course of the Customer's business.
- If, during the Warranty Period (defined below), any Goods manufactured by the Company are found upon inspection by the Company to have proved defective in material or workmanship under normal use and when properly installed, the Company will replace such Goods, provided the Company is notified in writing of the defect as soon as possible after discovery thereof during the Warranty Period and, should the company so require, the goods are returned freight prepaid. Any cost of expense incurred by any persons removing or refitting Goods shall be borne by the customer.
- Unless otherwise stated in writing the Warranty Period (referred to above) for Goods shall be 12 months from the date of delivery to the initial retail user or 18 months from the date of delivery to the Customer whichever is the earlier. The Warranty Period for Goods fitted as replacement parts under warranty will be the unexpired period of the original Warranty.
- The warranty contained in this clause shall not apply in respect of Goods: (i) supplied by the Company which are samples or prototypes of Goods for test or evaluation purposes , and in these circumstances the Company's only obligation shall be to endeavor to supply Goods in accordance with any specification performance criteria or drawings agreed with the Customer, (ii) Where the information supplied by the Customer is inaccurate, (iii) Where all or part of the Goods are supplied to the Company by a third party nominated by the Customer and a corresponding warranty does not exist or is not complied with , or (iv) Which have been subject to any unauthorized repair or replacement, modification or alteration.
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- Limitation and Exclusion of Liability
- The Company's obligations and liabilities to the Customer in respect of the Goods shall be limited to those set out in the Contract Terms.
- The Company does not exclude or limit its liability (if any) to the Customer for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability.
- Subject to and without limiting (8.1) above, all warranties, representations and conditions and all liabilities and obligations whatsoever and howsoever arising, whether express, implied, statutory or otherwise are hereby expressly excluded.
- Subject to and without limiting (8.1) and (8.3) above; the Company shall not be liable to the Customer for lost profits or incidental, indirect or consequential damages arising out of or in connection with any Goods whether supplied or not.
- Force Majeure
Neither the Company nor the Customer will be liable for a failure to perform that arises from causes or events beyond its reasonable control and without its fault or negligence. The party claiming the excusable delay shall give notice in writing as soon as possible after the occurrence of the cause relied on and after termination of the condition. The Customer shall continue to pay for Goods delivered.
The Customer shall not assign, mortgage, or otherwise dispose of any contract or any rights thereunder in whole or in part without the Company's prior written consent.
- The Customer fails to pay the price when due or otherwise breaches any contract with the company; or
- The Customer is unable to pay its debts as they become due, or the Customer otherwise becomes insolvent or suspends payment or threatens to do so or ceases to do business; or
- Steps are taken to:
- Propose any composition or arrangement involving the Customer and its creditors generally; or
- Obtain an administration order or appoint any receiver in relation to the Customer or any of its property or
- Wind-up or dissolve the Customer; or
- Change who has control of the Customer; or
- The company reasonably believes that any of the foregoing is about to occur,
The Company may (without prejudice to its other rights hereunder or otherwise) at any time by notice to the Customer do any one or more of the following:
- Terminate, cancel and/or rescind the contract or any release and any other contracts with the Customer or sspend any deliveries to be made under any contract with the customer, or
- Revoke any authority to sell, use or consume any Goods the title of which has not passed to the Customer ('relevant goods') and require the Customer to return to the Company any relevant goods (and, if the Customer fails to do so, the Customer shall reimburse the Company for all costs to obtain possession of relevant goods, and re-sell any relevant goods without giving notice, or
- Require the Customer to reimburse the Company for costs related to any purported cancellation or failure to take delivery, including without limitation the cost of any material, labour, plant, tools and any overheads, used, or intended to be used, for the Customer's order(s).
- The company will (without prejudice to any other remedy available to it) have in respect of all unpaid debts due from the Customer a lien on all property of the Customer in the possession of the Company.
- Professional Liability
- Harvan Manufacturing Limited does not carry Professional Liability Insurance in accordance with the minimum requirements of The Professional Engineers Act R.R.O. 1990 Regulation 941 clause 74.
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