Terms and Conditions:
“Buyer” as used herein shall mean the purchaser of goods and/or services from CPS Filtration Inc.
“Seller” shall mean CPS Filtration Inc.
“Product” shall mean the goods or services purchased by the Buyer from the Seller.
This document (the “Agreement”) from the Seller contains the entire terms and conditions associated with the sale of Product by the Seller to the Buyer. Any different or additional terms, conditions, representations or warranties contained in any other document, including but not limited to, quote, purchase order, other Buyer document, or mentioned verbally, shall not be effective or binding upon the Seller unless agreed to in writing and signed by an Officer of the Seller. If the Buyer issues a purchase order or other correspondence addressing this transaction such purchase order or correspondence shall be for the Buyer’s internal purposes only and the terms and conditions contained therein shall have no force or effect.
Until an order is accepted by the Seller, quoted prices are subject to change without notice. Prices for Products quoted are based on a reasonable estimation of the Seller’s labour and material costs as of the date of the quotation unless otherwise specified. All prices are exclusive of all harmonized sales tax, goods and services tax, sales tax, value added tax, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
If, after the placement of an order, the Buyer instructs the Seller, in writing, to reduce the quantity of any Product, the Buyer shall pay to the Seller any increased cost caused by the manufacturing of any lower quantity, as determined by Seller. The cost shall be implemented into all parts shipped and any balance of any revised order.
ORDERS & DELIVERY
Product will be delivered within a reasonable time after the Seller’s acceptance of Buyer’s order. The Seller shall use reasonable efforts to meet any delivery dates agreed upon in the Buyer’s purchase order, provided that any such dates shall be estimates only. Unless otherwise agreed in writing by the parties, the Seller shall deliver the Product to the location agreed upon in the purchase order (the “Delivery Point“) using the Seller’s standard methods for packaging and shipping such Product. Shipping methods and routes will be at the Seller’s discretion and the Seller will not be liable for any delays, loss or damage in transit. The Buyer shall be responsible for all loading costs and provide equipment and labour reasonably suited for receipt of the Product at the Delivery Point. The Seller’s liability for failing to deliver any Product will be limited to delivering the Product within a reasonable time or adjusting the invoice to reflect the actual quantity of Product delivered.
Risk of loss passes to the Buyer upon delivery of the Product at the Delivery Point. The Seller will retain title to the Product until it has received full payment for the Product.
If applicable, the Buyer will accept over-run or under-run on each individual item not exceeding 5% of quantities ordered. The Seller may, in its sole discretion, without liability or penalty, make partial shipments of Product to the Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfilment of Buyer’s purchase order.
Orders will be paid by cash or credit card. If the Seller agrees to sell Product on open credit, the Buyer shall pay all invoiced amounts due to the Seller within 30 days from the date of Seller’s invoice. All payments shall be made by wire transfer, cheque or direct deposit in Canadian dollars. In addition to all other remedies available to the Seller, the Seller shall be entitled to suspend the delivery of any Product if the Buyer fails to pay any amounts within 30 days from the date of Seller’s invoice. The Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with the Seller.
CHANGES & CANCELLATIONS
The Seller shall not be responsible for any changes in specifications of the Product unless such changes are confirmed in writing by the Buyer and accepted in writing by the Seller. Any price variation resulting from such changes shall become effective immediately upon the acceptance of the changes, and the Buyer agrees to be responsible for any such variation. Upon acceptance by the Seller, an order can only be changed or cancelled effective as of the date of the Seller’s written consent and upon terms that indemnify the Seller against any loss or additional cost incurred by the change order or cancellation. Upon effective cancellation or change, the Seller shall have the option, at the cost of the Buyer, to continue the processing of materials or articles affected to the point at which the processing can be halted with the least inconvenience to the Seller. If any prior inventory in the Seller’s possession shall become obsolete due to such changes or cancellations by the Buyer, the Buyer agrees to be immediately invoiced for and to pay the value of the obsolete inventory.
ENGINEERING (NRE) CHARGE
Additional Engineering (NRE) charges may be quoted to cover the cost of process design required for the Seller to perform the Buyer’s manufacturing requirements, which may include fabricating special tooling fixtures, machine programming and SPC systems as examples. It is agreed that these engineering charges shall be made on the original order. If these costs are not included in the original order or if revisions are made, an additional engineering charge may be applied as necessary in the Seller’s sole discretion.
The Seller shall be at liberty to elect to use materials supplied by the Buyer or materials purchased by the Seller on behalf of the Buyer. If the Seller agrees to use materials supplied by the Buyer, then the Buyer shall be solely responsible for supplying and delivering such material in a timely manner at no cost or expense to Seller, in sufficient quantity and quality, including any loss, waste, or scrap that may occur for any reason, as the Seller deems necessary to complete the order. The Buyer hereby acknowledges that the Seller shall not be liable for, and the Buyer shall pay any previously negotiated delivery premiums, despite any failure or delay in delivering any Product to be provided hereunder if such failure or delay is caused by the Buyer’s failure to supply and deliver such materials in a timely manner or in sufficient quantity and quality as the Seller deems necessary. Additional charges to the Buyer may be applied in the event that any material supplied by Buyer does not meet the required specifications for the Product ordered and causes additional manufacturing costs to the Seller. Should the Seller elect to purchase their own materials, the Buyer agrees that they shall be solely responsible for reimbursing the Seller for the cost of said material.
SPECIAL ORDERS AND INTELLECTUAL PROPERTY
If any material shall be specially manufactured or sold by the Seller to meet the Buyer’s specifications, the Buyer will indemnify, hold harmless and defend Seller from and against any and all claims, suit, damage, cost, expense, fine, liability or cause of action whatsoever, including all solicitor and their own client fees, on account of, relating to, or arising out of any claimed infringement of the rights of any third party due to the use of the Product by the Buyer, or the further use, distribution or sale of the Product by the Buyer.
If Buyer pre-production approvals are required, deliveries will be based on date of receipt of said approval from the Buyer. If approvals are not received in a timely fashion, additional set-up charges may apply and/or delivery dates may be delayed. The Buyer agrees that they will be solely responsible for these charges and delays and that and the Seller will not be liable to Buyer for the same.
DOCUMENT AND RECORD RETENTION
The Seller shall retain all customer supplied information, documents, and resultant Seller quality management system records for a period of two years from date of order. If customer requirements differ, the Buyer must notify the Seller of these requirements and obtain the Seller’s written consent for any deviation.
Should the Buyer have regulatory requirements for a given Product, the Buyer agrees and confirms that it shall be responsible for ensuring that all requirements have been provided to the Seller when submitting a Purchase Order. It is expressly agreed and acknowledged that the Seller shall not be held liable for any Product failing to meet the regulatory requirements of the Buyer should those requirements not be listed on the Purchase Order and acknowledged in writing by the Seller. In the event that the Buyer should fail to communicate the regulatory requirements to the Seller, the Buyer shall be responsible and shall indemnify the Seller for all costs incurred by either the Buyer or the Seller in order to bring the Product in line with said regulatory requirements, including any resulting fines or fees, and for all work done to date.
The Seller will be excused from the obligations of this Agreement and will not be liable for the Buyer for any failure or delay in performing its obligations hereunder to the extent that such performance is delayed or prevented by any circumstances reasonably beyond its control, including, without limitation, acts of God, fire, flood, explosion, mechanical breakdown, strikes or other labour troubles, plant shutdown, unavailability of or interference with the usual means of transporting the product, unavailability of materials, epidemics, pandemics, war, civil unrest or compliance with any law, regulation or request of any governmental authority (hereafter described as “Force Majeure”). The Seller shall give prompt written notice to the Buyer of the occurrence of a Force Majeure event. Either party shall have the right to terminate any unperformed portion of this Agreement as a result of a Force Majeure situation. However, the duty of the Buyer to pay for the Product received or for reasonable expenses incurred by the Seller in relation to the Product up until the occurrence of the Force Majeure event, as documented by the Seller, is never suspended, including by reason of termination of the Agreement hereunder.
The Seller warrants that for a period of 12 months from the date of delivery of the Product, the quality of the Product shall materially conform to specifications (specifically as to material) as agreed upon by the parties. THIS IS THE ONLY REPRESENTATION OR WARRANTY THE SELLER MAKES WITH RESPECT TO THE PRODUCT AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE OR USE, ARE EXPRESSLY DISCLAIMED.
Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Product. Third Party Products are not covered by the warranty set forth above. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS, CONDITIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Claims by the Buyer for a non-conforming Product, shipment, delivery or for any other cause associated with the Seller’s performance under this Agreement, shall be deemed waived by the Buyer, and the Seller shall not be liable for the same, unless submitted in writing, with documented evidence of non-conformance, within 30 days of receipt of shipment and, in the case of an alleged defect in the Product, the Seller reasonably verifies the Buyer’s claim that the Product does not conform to the limited warranty specified herein.
The Seller shall not be liable for a breach of the warranty set forth in this Section if: (i) Buyer makes any further use of the Product after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Product; or (iii) Buyer alters or repairs such Product without the prior written consent of Seller.
The Seller’s obligation and entire liability and the Buyer’s sole and exclusive remedy for any claim or cause of action arising from or related to this Agreement, including a breach of the limited warranty specified herein, is limited to, at the discretion of the Seller, (i) the repair or replacement of Product not conforming to the specifications as agreed upon by the parties, or (ii) credit or refund of the price for such Product.
THE SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, DAMAGES RELATED TO LABOUR, DOWNTIME, LOSS OF PROFIT OR REVENUE, LOSS OF RETURN ON INVESTMENT, COST OF CAPITAL, LOSS OF OPERATING TIME OR PRODUCTION, LOSS OR REDUCTION OF USE OR VALUE OF ANY FACILITIES, EXPENSE OF REPLACEMENT PRODUCTS OR POWER, OR INCREASED COSTS OF OPERATIONS OR MAINTENANCE, OR EQUIVALENT THEREOF, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT (INCLUDING ANY BREACH OF WARRANTY OR NON-CONFORMANCE OR DEFECT IN THE PRODUCT), WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER OR SELLER, AND REGARDLESS OF WHETHER SUCH LIABILITY SHALL BE CLAIMED IN CONTRACT, WARRANTY, EQUITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCT SOLD HEREUNDER OR $50,000, WHICHEVER IS LESS.
The Buyer agrees to indemnify, defend and hold harmless the Seller, its officers, agents, employees, successors, assigns, customers and users of the Product, from and against any and all losses, expenses (including without limitation, solicitor and their own client costs, and other professional fees), costs, damages, demands, liabilities, suits and claims in connection with or arising out of any actual or alleged personal injury (including death) or damage or destruction to property (including loss of use) by whomsoever suffered, sustained or alleged to have been sustained by reason of any act, error or omission, whether negligent or not, of the Buyer or its agents, employees, or affiliates, provided that such injury, death, damage or destruction is not occasioned by the sole negligence of Seller or its agents and employees.
CHOICE OF LAW AND VENUE
This Agreement and all matters arising out of it, including the transaction between the Buyer and the Seller, shall be governed by the laws of the Province of Alberta, and the parties irrevocably attorn to the exclusive jurisdiction of the Alberta Courts in all matters related thereto. The Buyer and the Seller mutually agree that the United Nations Conventions on Contracts for the International Sale of Goods does not apply to this transaction.
In addition to any remedies that may be provided under this Agreement, the Seller may terminate this Agreement with immediate effect upon written notice to the Buyer, if the Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
No waiver by the Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure by the Seller to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise by the Seller of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
The Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
NO THIRD-PARTY BENEFICIARIES
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
ENTIRETY AND MODIFICATION
This Agreement contains the entire agreement of the parties and all proposals, negotiations, agreements, representations or warranties, if any, made prior to and concerning this Agreement are superseded by this terms contained herein. Any subsequent modifications to this Agreement shall be at the discretion of the Seller, and must be in writing stating an intention to modify this Agreement and signed by an authorized representative of the Seller.