Terms & Conditions
THESE TERMS AND CONDITIONS GOVERN THE SALE OF ALL PRODUCTS AND SERVICES (“PRODUCTS”) BY 7132221 CANADA INC (“HAWKTREE SOLUTIONS”) AND APPLY NOTWITHSTANDING ANY CONFLICTING, CONTRARY OR ADDITIONAL TERMS AND CONDITIONS IN ANY PURCHASE ORDER OR OTHER DOCUMENT OR COMMUNICATION FROM A BUYER. SUBMISSION BY A BUYER TO HAWKTREE SOLUTIONS OF AN ORDER SHALL CONSTITUTE THE BUYER’S ACCEPTANCE OF THESE TERMS AND CONDITIONS. NEITHER HAWKTREE SOLUTIONS’S ACKNOWLEDGMENT OF A PURCHASE ORDER NOR HAWKTREE SOLUTIONS’ FAILURE TO OBJECT TO CONFLICTING, CONTRARY OR ADDITIONAL TERMS AND CONDITIONS IN A PURCHASE ORDER SHALL BE DEEMED AN ACCEPTANCE OF SUCH TERMS AND CONDITIONS OR A WAIVER OF THE PROVISIONS HEREOF.
All orders are subject to acceptance by HAWKTREE SOLUTIONS. No orders for Products may be cancelled without HAWKTREE SOLUTIONS’s written consent. HAWKTREE SOLUTIONS reserves the right to allocate sales of Products among its customers in its sole discretion.
Prices shall be as specified by HAWKTREE SOLUTIONS and shall be subject to increase in the event of an increase in HAWKTREE SOLUTIONS’s costs or other circumstances beyond HAWKTREE SOLUTIONS’s reasonable control. Prices are exclusive of federal, provincial, local or any other taxes, charges, levies and duties, shipping charges, forwarding agent’s and broker’s fees, consular fees and document fees. If HAWKTREE SOLUTIONS shall be liable for or shall pay any of the foregoing, the HAWKTREE SOLUTIONS shall charge such amount to Buyer in addition to the price of the Products
All shipments by HAWKTREE SOLUTIONS are F.O.B. point of origin and all shipping and handling charges shall be paid by Buyer in addition to the price of the Products. Subject to HAWKTREE SOLUTIONS’s right of stoppage in transit, delivery of the Products to the carrier shall constitute delivery to Buyer and risk of loss shall thereupon pass to Buyer; however, title shall remain in HAWKTREE SOLUTIONS until Buyer makes payment in full for the Products. Selection of the carrier and delivery route shall be made by HAWKTREE SOLUTIONS. HAWKTREE SOLUTIONS shall use reasonable efforts to initiate shipment and schedule delivery as close as possible to Buyer’s requested delivery dates. Buyer acknowledges that delivery dates provided by HAWKTREE SOLUTIONS are estimates only and that HAWKTREE SOLUTIONS is not liable for failure to deliver on such dates. HAWKTREE SOLUTIONS reserves the right to make deliveries in installments. Delivery of a quantity which varies from the quantity specified shall not relieve Buyer of the obligation to accept delivery and pay for the Products delivered; however Buyer does not have to pay for the Products delivered in excess of the quantities specified provided Buyer returns such excess quantities to HAWKTREE SOLUTIONS, at HAWKTREE SOLUTIONS’s expense, within ten (10) days after delivery of such Products. Delay in delivery of one installment shall not entitle Buyer to cancel other installments
Payment is due net 30 days upon receipt of invoice, unless credit approval has been granted by HAWKTREE SOLUTIONS. If credit has been approved, buyer agrees to pay the entire net amount of each invoice from HAWKTREE SOLUTIONS pursuant to the terms of each such invoice without offset or deduction. HAWKTREE SOLUTIONS, may in its sole discretion at any time change the terms of Buyer’s credit, require payment in cash, bank wire transfer or by check and/or require full payment of any or all amounts due or to become due for Buyer’s order before shipment of any or all of the Products. If HAWKTREE SOLUTIONS believes in good faith that Buyer’s ability to make payments may be impaired or if Buyer shall fail to pay any overdue invoice, HAWKTREE SOLUTIONS may suspend delivery of any order or any remaining balance thereof until such payment is made or cancel any order or any remaining balance thereof and Buyer shall remain liable to pay for any Products already shipped. Buyer agrees to submit such financial information form time to time as may be reasonably requested by HAWKTREE SOLUTIONS for the establishment and/or continuation of credit terms. The date of collection of a cheque by HAWKTREE SOLUTIONS shall be deemed the date of payment by the Buyer. Any cheque received from Buyer may be applied by HAWKTREE SOLUTIONS against any obligation owing from Buyer to HAWKTREE SOLUTIONS, regardless of any statement appearing of the face of such cheque, without discharging Buyer’s liability for any additional amounts owing from Buyer to HAWKTREE SOLUTIONS, and the acceptance by HAWKTREE SOLUTIONS of such cheque shall not constitute a waiver of HAWKTREE SOLUTIONS’s right to pursue the collection of any remaining balances. Buyer may be subject to interest charges on any invoice not paid when due from the due date to the date of payment at the rate of the lesser of (two (2) percent per month and (ii) the highest rate permitted by applicable law. If Buyer does not make payment when due, HAWKTREE SOLUTIONS may pursue any legal or equitable remedies, in which event HAWKTREE SOLUTIONS shall be entitled to reimbursement for costs of collection and reasonable legal fees
Seller warrants to Buyer that upon delivery to Buyer the Products purchased hereunder shall conform to the applicable HAWKTREE SOLUTIONS specifications or Buyer’s Specifications for such Products. EXCEPT AS ARE CONTAINED IN THIS PARAGRAPH 6, HAWKTREE SOLUTIONS MAKES NO WARRANTIES, CONDITIONS, GUARANTEES OR REPRESENTATIONS RELATING TO THE PRODUCTS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OR RESPECTING INFRINGEMENT
With respect to Products which do not meet applicable Seller’s specifications or Buyer’s Specifications, Seller’s liability is limited at Seller’s selection to (1) refund of Buyer’s purchase price for the Products (without interest), (2) repair of such Products, or (3) replacement of such Products, provided, however, Buyer gives Seller written notice promptly upon discovery thereof, and in any event, within sixty (60) days after delivery to Buyer
Seller shall transfer to Buyer whatever transferable warranties and indemnities Seller receives from the manufacturers of any subcomponents of the Products, if any, including any transferable warranties and indemnities in respect of patent infringement
Inspection and acceptance of the Products shall be Buyer’s responsibility. Buyer is deemed to have accepted the Products unless written notice of rejection is received by Seller within two (2) days after delivery of the Products. Buyer waives any right to revoke acceptance thereafter. Buyer shall report any discrepancy in shipment quantity or damage within three (3) days after delivery. No return of Products shall be accepted by HAWKTREE SOLUTIONS without HAWKTREE SOLUTIONS’s approval. Returned Products must be in original packaging. Products for return shall be returned in the manner specified in the HAWKTREE SOLUTIONS’ approval. If returned Products are claimed to be defective, a complete description of the nature of the defect must be included with the returned Products. Products not eligible for return shall be returned to the Buyer, freight collect. Products returned shall be at the Buyer’s sole risk and expense
7. LIMITATION OF DAMAGES AND LIABILITY
HAWKTREE SOLUTIONS LIABILITY TO THE BUYER FOR DAMAGES, HOWSOEVER CAUSED, SHALL NOT EXCEED PAYMENT ACTUALLY RECEIVED BY HAWKTREE SOLUTIONS FOR THE PRODUCT OR SERVICE FURNISHED, OR TO BE FURNISHED, AS THE CASE MAY BE, AND IN NO EVENT SHALL HAWKTREE SOLUTIONS, ITS EMPLOYEES, OFFICERS, DIRECTORS OR REPRESENTATIVES BE LIABLE FOR INDIRECT, CONTINGENT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFIT), COSTS OR EXPENSES OF ANY NATURE RELATING TO THE PRODUCTS INCLUDING WITHOUT RESTRICTION LOSS, DAMAGE OR INJURY ARISING OUT OF THE NEGLIGENCE OF HAWKTREE SOLUTIONS OR THAT OF ITS EMPLOYEES, AGENTS, REPRESENTATIVES OR OTHER PERSONS FOR WHOM IN LAW HAWKTREE SOLUTIONS IS RESPONSIBLE. HAWKTREE SOLUTIONS SHALL NOT BE LIABLE FOR AND BUYER SHALL INDEMNIFY, DEFEND AND HOLD HAWKTREE SOLUTIONS HARMLESS FROM ANY CLAIMS BASED ON HAWKTREE SOLUTIONS’S COMPLIANCE WITH BUYER’S SPECIFICATIONS, DESIGNS OR INSTRUCTIONS, OR MODIFICATION OF ANY PRODUCTS BY PARTIES OTHER THAN HAWKTREE SOLUTIONS, OR USE IN COMBINATION WITH OTHER PRODUCTS.
8. USE OR RESALE OF PRODUCTS BY BUYER
Products sold by HAWKTREE SOLUTIONS are designed for use in life saving situations. However, HAWKTREE SOLUTIONS can not guarantee that the Products will prevent personal injury or loss of life. If Buyer uses or sells the Products for use in any such applications: (1) Actual conditions of use may vary and are beyond the control of HAWKTREE SOLUTIONS, a Product’s specified characteristics and any recommendations for use, however communicated, are offered solely for Buyer’s evaluation; (2) Buyer acknowledges that such use or sale is at Buyer’s sole risk; (3) Buyer agrees that HAWKTREE SOLUTIONS is not liable, in whole or in part, for any claim or damage arising from such use; (4) Buyer agrees to indemnify, defend and hold HAWKTREE SOLUTIONS harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale; and (5) Buyer assumes all risk and liability for loss or injury in connection with the use of the Products whether used singly or in combination with other substances or products in any process whatsoever.
9. INTELLECTUAL PROPERTY
If a Product includes intellectual property; such intellectual property is provided by HAWKTREE SOLUTIONS to Buyer subject to the copyright of HAWKTREE SOLUTIONS. Nothing herein shall be construed to grant any rights or license to use intellectual property in any manner or for any purpose not expressly permitted by HAWKTREE SOLUTIONS.
(a) Buyer may not assign or cancel an accepted order for product without the consent of HAWKTREE SOLUTIONS.
(b) All agreements for the sale of products or services by HAWKTREE SOLUTIONS shall be governed by the laws of the Province of Ontario (without reference to its provisions on conflicts of laws) and shall in all respects be treated as Ontario contracts. The application of the United Nations convention for the International Sales of Goods is expressly excluded.
(c) All specifications, technical data, price lists, documents, materials and proprietary information relating to the Products are the confidential and proprietary information of HAWKTREE SOLUTIONS and shall be treated in confidence by Buyer and shall not be disclosed, reproduced or communicated to any third party in any way whatever except as is required in connection with the purchase and use of the Product by Buyer, and on terms and conditions agreed with HAWKTREE SOLUTIONS in writing. The foregoing provisions do not apply to information that was publicly available prior to the date of disclosure by HAWKTREE SOLUTIONS or that becomes publicly available after such disclosure other than pursuant to a breach of any obligation of confidentiality to HAWKTREE SOLUTIONS.
(d)Failure by HAWKTREE SOLUTIONS to exercise any of its rights with respect to these Standard Terms and Conditions shall not constitute a waiver or forfeiture of such rights.
11. FORCE MAJEURE
HAWKTREE SOLUTIONS shall not be liable for failure to fulfill its obligations herein or for delays in delivery due to causes beyond its reasonable control, including, but not limited, to, acts of God, revolution, natural disasters, acts or omission of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, riots, wars, acts of terrorism, delays in transportation or inability to obtain supplies or materials through its regular sources. HAWKTREE SOLUTIONS’s time for performance of any such obligation shall be extended for the time period of such delay or HAWKTREE SOLUTIONS may, at its option, cancel any order or remaining part thereof without liability by providing written notice of such cancellation to Buyer.
12. ENTIRE AGREEMENT
These Standard Terms and Conditions shall constitute the entire agreement between HAWKTREE SOLUTIONS and the Buyer respecting the subject matter hereof. No representation, promise, agreement or condition in respect of such subject matter shall be binding on either party unless contained herein. Except for the correction of stenographic or clerical errors, and notwithstanding anything in the Buyer’s purchase order to the contrary, no amendment of these Standard Terms and Conditions shall be of any effect unless agreed to in writing by HAWKTREE SOLUTIONS.