SALES TERMS AND CONDITIONS
These are the Terms and Conditions governing sales by Vicwest Inc. (“Vicwest”), and are incorporated by reference in every order accepted by Vicwest (each such order, as accepted by Vicwest in its Order Acknowledgement, “a Contract”).
The quantity, quality, description of, delivery schedule and price for Vicwest products (“Products”) shall be those set out in the Vicwest Order Acknowledgement (subject to the general terms and conditions below).
Placing an order for Vicwest products constitutes acceptance of these Terms and Conditions of Sale. No addition to, waiver of or modification of these Terms and Conditions, nor anything stated on the Buyer’s Purchase Order or Terms and Conditions, shall be binding on Vicwest unless expressly agreed to in writing by Vicwest, which writing states that it supersedes these Terms and Conditions in that regard, and the specific provision so stating has been initialed as “accepted” by Vicwest. Any proposal for additional or different terms or any attempt by Buyer to vary any of the terms of this document is hereby objected to and rejected, but such proposal shall not operate as a rejection of the Contract unless such variations are in the description of the product, quantity, price or delivery schedule. Any prior agreement with Buyer with respect to the terms and conditions of sale shall not apply.
- Domestic: Subject to the credit approval of Vicwest, payment terms are net 30 days from the date of shipment with no cash discount, retention or withholding allowed for any reason whatsoever. The payment terms set forth herein are subject to Buyer and Vicwest maintaining a mutually acceptable credit arrangement which may be modified by Vicwest at any time.
- International: Payment terms are by an irrevocable letter of credit or cash in advance unless other payment arrangements have been established in writing.
- Overdue payments will bear interest at the lesser of 18% per annum and the maximum rate permitted by applicable law. Vicwest reserves the right to withhold any or all shipments to the Buyer if any amount owed by Buyer to Vicwest under any order is more than 10 days past due. In the event of such a default, Vicwest shall not be under any obligation to ship any pending order until all outstanding invoices are paid, regardless of whether some of the outstanding invoices are not yet past due and, unless otherwise agreed in writing, Buyer has provided adequate assurances of payment, acceptable to Vicwest, with respect to all pending orders.
- Price. All prices expressed are F.O.B. factory for domestic sales and ex works (factory) for international sales, and include standard Vicwest packaging of material. Not applicable to residents of the province of Québec to which the Consumer Protection Act (Québec) applies : Prices shall be subject to adjustment to reflect any increased costs in effect at the time of shipment.
- Quotations. All quotations are valid for 30 days from date of issue unless otherwise stated in writing.
Not applicable to residents of the province of Québec to which the Consumer Protection Act (Québec) applies : This is further subject to price adjustments as in accordance with Section 2.
All quotations are in Canadian Dollars unless otherwise agreed in writing.
- Order; Changes.
- Orders: Orders must be in writing and submitted to Vicwest by Buyer. Orders shall be directed to Vicwest’s Customer Service Department for processing. Orders will be accepted only upon issuance of an Order Acknowledgement by Vicwest.
- Cancellations: Orders for product may be cancelled until the earlier of six weeks prior to the scheduled date of shipment and commencement of manufacture.
Not applicable to residents of the province of Québec to which the Consumer Protection Act (Québec) applies : In such cases, Vicwest may charge a cancellation fee of up to 50% of such order.No cancellations are allowed within six weeks of scheduled shipment.
- Order Acknowledgments; Product Allocation: The Order Acknowledgement acts as Buyer’s confirmation that Vicwest is supplying the product ordered by Buyer on these Sales Term and Conditions. It is the Buyer’s responsibility to review Vicwest’s Order Acknowledgment and to make certain that it is correct in all particulars, then sign and return it within two (2) business days of the issuance date. Unreturned Order Acknowledgments or those returned more than two (2) business days after issuance will be considered by Vicwest to be acceptable to Buyer in all particulars. Acceptance of product constitutes conclusive evidence of acceptance of the terms of the Contract.
- Shortage of Product. In the event of shortage of product, Vicwest reserves the right to allocate goods among its customers.
- Order Modification: Revisions or additions to an order must be in writing and will be accepted only if confirmed in writing by Vicwest. An order may be revised by the Buyer up to six weeks prior to the scheduled ship date. Revisions submitted within six weeks of the scheduled ship date may result in the Buyer’s order being rescheduled with the current production lead time for the products ordered and Vicwest will not be responsible for any resulting delays. All revision requests will be addressed on an individual basis and will become valid only if and when confirmed in writing by Vicwest. Each order will be allowed two routine order revisions at no administrative charge up to six weeks prior to scheduled ship date, provided, however that such revisions cannot involve variations, on a cumulative basis, of more than 10% of the price or volume from the original order. In the event that such variations exceed such 10% threshold, Vicwest reserves the right to consider the order as cancelled by the Buyer and may charge a cancellation fee of up to 50% of such order.
- The Buyer shall be responsible to Vicwest for ensuring the accuracy of the information in the Vicwest Order Acknowledgement, and for giving Vicwest any further necessary information relating to the Products within a sufficient time to enable Vicwest to perform the Contract in accordance with its terms. Vicwest reserves the right to make any changes in the specification of the products which are required to conform to any applicable safety or other statutory requirements or which do not materially affect their quality or performance.
- Shipment and Storage.
- Vicwest will confirm an order’s anticipated ship date in writing prior to manufacturing. Buyer-initiated shipment delays beyond two business days of the acknowledged ship date may result in Buyer’s order being rescheduled with the current production lead time for the products ordered and Buyer’s order being shipped Best Way by Vicwest at Buyer’s expense, or Buyer’s order being stored at Buyer’s expense.
- If the cost of manufacture, storage or delivery of the products is increased as a result of the Buyer changing the estimated delivery date, quantity or specification for the product or where there is any delay resulting from any change of instructions of the Buyer or a failure of the Buyer to give Vicwest adequate information or instructions (including any failure to advise Vicwest of any delivery constraint) then Vicwest reserves the right to increase the price to reflect such increase in cost and Vicwest will give notice to the Buyer at any time before delivery of the product of such increase in price.
- Not applicable to residents of the province of Québec to which the Consumer Protection Act (Québec) applies : Vicwest is not responsible for on-site storage at premises other than at Vicwest’s premises prior to delivery to carrier, or for any damages resulting from improper storage or partial or incomplete installation for any reason whatsoever. Buyer may be charged a storage fee for any product that has not been shipped due to Buyer’s acts or failure to act within 30 days of manufacture. Vicwest reserves the right to treat such product as abandoned, or to resell or dispose of same and Buyer shall be responsible for the balance of the purchase price therefore net of resale or scrap proceeds.
Not applicable to residents of the province of Québec to which the Consumer Protection Act (Québec) applies : Buyer shall further be responsible for applicable storage fees and costs of sale.
- All claims regarding lost, damaged or delayed shipments should be reported to the common carrier involved. The settlement of such claims is between the Buyer and the common carrier. Claims for short shipments should be reported to Vicwest in writing immediately.
- Any anomalies with the shipping and order must be communicated to Vicwest in writing as soon as discovered. Such reporting is for informational purposes only and does not constitute any liability on the part of Vicwest.
- Where the products are to be delivered in installments, failure by Vicwest to deliver any one or more of the installments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
- Delivery and Freight; Risk of Loss.
- Delivery to the carrier at point of shipment shall constitute delivery to the Buyer and the Buyer shall assume all risk for subsequent loss or damage. Shipments will be made “freight collect” or “bill 3rd party”, with instructions to the carrier to send freight bills to the Buyer at its main office. The carrier will be instructed to notify Buyer 24 hours prior to delivery, unless otherwise directed. Vicwest cannot guarantee delivery by a common carrier on any specific date. Buyer is responsible for the validation of all freight rates.
- For international shipments, Vicwest will notify the Buyer of the shipment from its plant and shall communicate the details of such shipment as communicated by the carrier to Vicwest.
- Delivery dates are estimates only and Vicwest makes no guarantee with respect to same. Vicwest will use reasonable efforts to ship promptly, but will not be liable in any manner for delays or inability to ship for any reason.
- Buyer is solely responsible for any and all actual costs and changes in cost of freight whether or not stated in the product quotation or acknowledgement. Risk of loss to product transfers to Buyer upon Vicwest’s delivery of product to the carrier at the point of shipment, as does the obligation to insure product. Title passes only upon Buyer’s payment in full for the product.
Not applicable to residents of the province of Québec to which the Consumer Protection Act (Québec) applies : Paragraph 6 (d) above will apply regardless of any previous estimates.
- Not applicable to residents of the province of Québec to which the Consumer Protection Act (Québec) applies : Limitation of Actions and Liability; Offset. Any cause of action arising out of, or in any way connected with, the products or services furnished by Vicwest must be brought by Buyer within one year from the date of delivery of the products. Under no circumstances will Vicwest’s liability exceed the purchase price paid to Vicwest for such products. In no event shall Vicwest be liable for any special, incidental or consequential damages, including overhead or lost profits, cost of substitute equipment, facilities or services or business interruption, claims of third parties or cost of repair or replacing other property even if the remedy is determined to have failed of its essential purpose, or for liquidated damages, acceleration or financing costs, mobilization, overhead or damages resulting from delays of any kind whether or not the fault of Vicwest. Buyer shall not be entitled to withhold payment of any amount payable under the Contract to Vicwest because of any disputed claim of the Buyer in respect of defective products or any other breach of the Contract nor shall the Buyer be entitled to set off against any amount payable under the Contract against any monies owed by Vicwest.
- Not applicable to residents of the province of Québec to which the Consumer Protection Act (Québec) applies : Limited Warranty. No warranty is provided in connection with this sale unless Vicwest otherwise agrees in writing at the time of entry into the Contract and/or if Vicwest includes a Limited Warranty in any Contract submittal package provided to Buyer. In each such case, the warranty so provided shall be limited to the express provisions thereof. Vicwest’s sole obligation in respect of any warranty so provided shall be, at Vicwest’s option, repair or replacement of the defective product. TO THE EXTENT PERMITTED BY LAW, EXCEPT AS SET FORTH IN A FREESTANDING WRITTEN WARRANTY PROVIDED AS DESCRIBED IN THIS SECTION 8 ALL WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THE CONDITION OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE ARE HEREBY DISCLAIMED. Any warranty provided will run only to the initial owner of the building in which the Vicwest products are installed.
Weathertight warranties may be available for an additional charge. Meeting Vicwest weathertight eligibility requirements, including utilization of an installer acceptable to Vicwest, is a precondition of issuance of any such weathertight warranty.. No weathertight warranty shall be issued unless specified in Vicwest’s quotation for the project, subject to the above-mentioned eligibility requirements and other terms and condition set forth in the Contract.
- Product Claims. Buyer shall have ten days from receipt of the products by Buyer to inform Vicwest that the products do not conform to Buyer’s specifications or contain material defects; otherwise such goods shall be deemed accepted by Buyer.
- Not applicable to residents of the province of Québec to which the Consumer Protection Act (Québec) applies : Disclaimers. Any publications or other information provided by Vicwest with respect to handling or installation of product is for general informational purposes only. Buyer remains fully responsible for all handling after delivery to the carrier at Vicwest’s premises and for installation, including all safety procedures. Unless otherwise agreed in a writing signed by an officer of Vicwest, Vicwest does not assure compliance with plans or specifications provided by Buyer, Buyer’s agent or any third party whatsoever, and it remains the responsibility of the Buyer (or its consultants) to confirm compliance of the product with applicable local, state and national codes and other laws or regulations and Buyer’s building permit.
Not applicable to residents of the province of Québec to which the Consumer Protection Act (Québec) applies : Any advice or recommendation given by Vicwest or its employees or agents to the Buyer or its employees or agents as to the storage, application, installation or use of the products, which is not confirmed in writing by Vicwest, is followed or acted upon entirely at the Buyer’s own risk, and accordingly Vicwest shall not be liable for any such advice or recommendation which is not so confirmed. Buyer acknowledges and agrees that any shop drawings prepared by Vicwest are solely for the purpose of finalizing Vicwest’s bill of materials and are not for reliance by Buyer or any installer.
- Specifications and Indemnity. The specification and design of the products (including the copyright, design right or other intellectual property in them) shall be the property of Vicwest or its licensors. Where any designs or specifications have been supplied by the Buyer for manufacture by or to the order of Vicwest then the Buyer warrants that the use of those designs or specifications for the manufacture, processing assembly or supply of products shall not infringe any of the rights of any third party. If the products are to be manufactured, or any process is to be applied to the products by Vicwest, in accordance with a specification submitted by the Buyer, the Buyer shall indemnify Vicwest against all loss, damages, costs and expenses awarded against or incurred by Vicwest (including reasonable attorney’s fees) in connection with or paid or agreed to be paid by Vicwest in settlement of any claim for infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any other person which results from Vicwest’s use of the Buyer’s specification.
- Export Terms. Where the products are supplied for export the provisions of this Section 12 shall (subject to any special terms agreed in writing between the Buyer and Vicwest) apply notwithstanding any other provision of these Terms and Conditions. The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the products into the country of destination and the exportation from the country of manufacture and for the payment of any duties or taxes thereon. The Buyer shall be entitled to attend the testing and inspection of the products by Vicwest at Vicwest’s premises before transportation. Vicwest shall have no liability for any claim in respect of any defect in the products which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
- Indemnification. To the maximum extent allowed by law, Buyer shall defend and indemnify Vicwest and its employees and agents against all sums, costs, and liabilities, losses, obligations, suits, actions, damages, penalties, fines, interest and other expenses (including investigation expenses and attorneys’ fees) that Vicwest may incur or be obligated to pay as a result of (i) Buyer’s negligence, use, ownership, maintenance, transfer, transportation or disposal of products; (ii) any infringement or alleged infringement of the industrial and intellectual property rights of others arising from Buyer’s plans, specifications (including Buyer’s trademarks and brand names) or production of the products ordered by Buyer; (iii) Buyer’s violation or alleged violation of any federal, state, county or local laws or regulation, including, the laws and regulations governing product safety labeling, packaging and labor practices; and (iv) Buyer’s breach of the Contract.
- Termination. Vicwest may cancel all Contracts with Buyer, by written notice if (a) Buyer becomes insolvent or makes a general assignment for the benefit of creditors, (b) a petition is filed or proceedings are commenced against Buyer under any bankruptcy or similar laws, or (c) Buyer defaults in the performance of any of its obligations under any Contract between Buyer and Vicwest (including failure to pay the purchase price when due), and Vicwest reserves all rights with respect to same. In such event, Vicwest may apply any payment made by the Buyer to any Contract between the Buyer and Vicwest) as Vicwest may think fit (notwithstanding any purported application by the Buyer).
- Confidential Information. The products utilize proprietary designs and information of Vicwest protected for Vicwest’s benefit by patent, trade secret and/or other forms of legal protection. Buyer agrees that it will not disclose to, or use for the benefit of, anyone else, or use for it its own benefit except in connection with the use of the products covered by the Contract, any developments, techniques, information, data, designs, devices, specifications, drawings, trade secrets or other information pertaining to the Contract, the goods covered thereby, or Vicwest’s methods or manufacturing processes which have been or may be disclosed or furnished by Vicwest to Buyer. Unless otherwise agreed to in writing, Vicwest retains for itself all proprietary rights in and to all engineering designs, manufacturing details, tooling and data related to the products that it manufactures.
- Taxes. Buyer agrees to provide Vicwest with documentary evidence of its assigned tax exemption number, if applicable, and agrees to pay all applicable sales, GST, HST, QST, VAT, revenue, use, excise, value added or other taxes or custom duties or fees arising from the sale by Vicwest to Buyer in addition to the purchase price.
- Returns. No product returns will be accepted unless first approved in writing by Vicwest. All returned products must be shipped freight prepaid and collect shipments will not be accepted. If the returned products are in a first class condition (which shall be determined by Vicwest in its sole discretion), Buyer will be credited at the invoice amount less up to a 50% charge. If the returned products are not in a first class condition, Vicwest may refuse to accept the return and reship the product to Buyer on freight collect basis.
- Security Interest. Buyer hereby grants to Vicwest a security interest in the products (together with any and all proceeds realized therefrom) as security for the performance by Buyer of all its obligations hereunder together with the right, without liability, to repossess the products with or without notice in the event of default of any such obligation. Buyer hereby consents to the filing by Vicwest of any financing statements from time to time by Vicwest, in order to perfect and protect the security interest granted to Vicwest hereby.
- Buyer-Supplied Material. Buyer-supplied material requires prior approval/testing from Vicwest’s Quality Control Department. Buyer-supplied material must be individually marked with a return material authorization number obtained from Vicwest’s Customer Service Department. All shipments must be made freight prepaid. Buyer-supplied material will be incorporated at Buyer’s own risk and Vicwest assumes no responsibility for the performance of Buyer-supplied material. Any overage of Buyer-supplied material will be scrapped unless Vicwest agrees otherwise at the time of order placement.
- Force Majeure. Vicwest is not liable or responsible for delay or failure to perform any of its obligations occasioned by any causes beyond Vicwest’s reasonable control, including labor disputes, fires, weather conditions (including hurricanes, tornadoes, snow and/or ice storms or wildfires), terrorist acts, earthquakes, floods, declared or undeclared war, epidemics, computer malfunctions, civil unrest, riots, lack of or delay in supply of energy or fuel, other supplies or raw materials, delay in transportation, governmental, regulatory or legal action or act of God.
- Building Components. Some persons may experience or claim allergic or medical reactions to components of various building materials. Vicwest does not warrant any materials used in its products to be free from any possible toxicity to users or occupants and, therefore, disclaims any liability for any problems arising therefrom.
- Electronic Transmission. Buyer hereby authorizes Vicwest to send to Buyer or receive from Buyer assignments, invoices, credit memoranda, credit approval requests, credit approvals, and other reports or notices to be delivered to or transmitted by Buyer under this Agreement by electronic means (each, an “Electronic Transmission”).
- Assignment; Terms and Conditions of Resale. No assignment of the Contract is permitted without the prior written consent of Vicwest. Buyer acknowledges that it will be bound by these Terms and Conditions of Sale regardless of the terms and conditions of its agreement with respect to sale of this product to any third party. Buyer acknowledges that payment terms, including so called “pay when paid” terms in its sales documentation with third parties shall in no event be deemed to modify the net 30 payment terms set forth above.
- Waiver. Failure of Vicwest to insist upon strict performance of any of the terms on this order shall not constitute a waiver of such terms and conditions or a waiver of any default. No waiver by Vicwest of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
- Severability. In case any one or more of the provisions or parts of a provision contained herein are, for any reason, held to be invalid, illegal or unenforceable in any respect in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or part of a provision hereof or any other jurisdiction, but these Terms and Conditions will be reformed and construed in any such jurisdiction as if such invalid or illegal or unenforceable provision or part of a provision had never been contained herein and such provision or part will be reformed so that it would be valid, legal and enforceable to the maximum extent permitted in such jurisdiction.
- Not applicable to residents of the province of Québec to which the Consumer Protection Act (Québec) applies : Choice of Laws; Expenses. All orders shall be construed and the rights of the parties interpreted in accordance with the laws of the Province of Ontario without regard to the conflicts of law thereof. The parties exclude the application of the U.N. Convention on Contracts for the International Sales of Good, the International Sale of Goods Act and the Provincial Sale of Goods legislation. Vicwest shall be entitled to recover from Buyer all of its costs and expenses (including legal fees) in enforcing its rights under this Agreement.
- Not applicable to residents of the province of Québec to which the Consumer Protection Act (Québec) applies : Dispute Resolution. Any dispute arising out of or in connection with the Contract including, without limitation, the existence or formation of a contract (a “Dispute”) shall be referred at first instance to senior representatives of each of the parties who shall endeavor in good faith to resolve the Dispute. In the event that a Dispute cannot be resolved by such senior representatives within fourteen (14) days of referral of the Dispute to them, then either party shall be entitled to refer the Dispute to mediation in accordance with the JAMS procedures then in force. The mediation process will be commenced by service by one party on the other of a notice in writing that the issue is to be referred to mediation (the “Mediation Notice”), but in the event that the parties are unable to agree on a choice of mediator within seven (7) days of the date of service of the Mediation Notice, the parties shall accept a mediator nominated by JAMS. Each party shall bear its own costs in respect of the mediation. In the event that a Dispute remains unresolved sixty (60) days after the date of service of the Mediation Notice, then the Dispute shall be referred to and finally resolved by arbitration in accordance with the UNCITRAL Rules, which Rules are deemed to be incorporated by reference into this Section 27. Nothing herein shall prevent either party from seeking injunctive or other equitable relief in a court of law to protect or enforce its legal rights.
- Language. The parties acknowledge that they have requested that these terms and conditions and all documents relating hereto be drawn up in the English language, and the English language shall prevail. Les parties reconnaissent qu’elles ont exigés que les présentes conditions de ventes et tous documents qui y sont afférents soient rédigés en langue anglaise et le langue anglaise prédominera.
- Integration; Headings; Notice; Interpretation. The parties have not relied on any statement, representation, warranty or agreement of the other party or of any other person on such party’s behalf, including any representations, warranties, or agreements arising from statute or otherwise in law, except for the representations, warranties, or agreements expressly contained in the Contract. These Terms and Conditions and the related Order Acknowledgement are final, complete and exclusive statement of the agreement between Vicwest and Buyer as to its subject matter; all prior communications between Vicwest and Buyer regarding the subject matter of the Contract are merged into and extinguished by this document. No course of prior dealing between the parties and no usage of the trade shall be relevant to supplement or explain any term used in the agreement. All Section headings contained in the Contract are for reference purposes only and shall not in any way affect the meaning or interpretation of the Contract. All references to “includes,” and “including” contained herein shall mean “including but not limited to.” Any notice required to be given under the Contract shall be in writing. Placing an order constitutes acceptance of these Terms and Conditions even if they are not countersigned by Buyer.