GENERAL TERMS AND CONDITIONS
Set forth herein are the Terms and Conditions under which FROMM Packaging Systems Canada Inc. ("FROMM") offers to sell its products ("Products") listed in the FROMM quotation ("Quotation") to which these Terms and Conditions are attached. The sale of said Products is expressly limited to, and made conditional upon, Purchaser's acceptance of these Terms and Conditions. These Terms and Conditions shall be the exclusive terms and conditions under which said Products are sold and cannot be modified or amended except as specifically set forth in the Quotation or in a separate document executed by an authorized representative of FROMM. These Terms and Conditions shall prevail over, supersede and exclude any other or inconsistent terms or conditions contained, or referred to, in any quotation, order, order acceptance, correspondence and/or any other documentation provided by Purchaser to FROMM in connection with the Quotation in respect of any Products.
Pricing and terms of payment shall be those set out in the Quotation. Unless otherwise stated in the Quotation, the price and terms of payment quoted will remain in effect for thirty (30) calendar days from the date of the Quotation. In addition to the quoted price of the Products, Purchaser will be charged for all applicable sales, use, excise and other similar taxes. The cost of Product modifications required to meet local laws, rules, regulations or codes are not included in the Product price unless specifically provided for in the Quotation.
Unless otherwise specifically agreed by FROMM in writing, all deliveries of Products shall be F.O.B. shipping point. The shipping point at which delivery will be made shall be determined by FROMM. Subject to the provisions of this Quotation, all Products shall be deemed accepted by Purchaser upon shipment to Purchaser from the shipping point. Purchaser (or its agent) shall be entitled, at its sole expense and on reasonable prior written notice to FROMM, to inspect Products prior to shipment.
All prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including federal, provincial and local sales, excise and value added, goods and services taxes, and any other taxes. Purchaser agrees to defend, indemnify and hold FROMM harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation and taxes shall appear as separate items on FROMM’s invoices.
FROMM shall not be responsible or liable for any loss or damage incurred by Purchaser herein resulting from causes beyond the reasonable control of FROMM including, but without limitation, acts of God, war, invasion, insurrection, riot , the order of any civil or military authority, fire, flood, weather, acts of the elements, delays in transportation, unavailability of equipment or materials, breakdown, sabotage, lock-outs, strikes or labour disputes, faulty castings or forgings, public health emergency, pandemic, epidemic or the failure of FROMM’s suppliers to meet their delivery obligations (each a “Force Majeure Event”). The acceptance (or deemed acceptance) of delivery of the Products by Purchaser shall constitute a waiver of all claims for loss or damage due to any delay whatsoever.
FROMM shall not be liable for and shall be held harmless by Purchaser from any damage, losses or claims of whatever kind, contractual or delictual, consequential or incidental, direct or indirect, arising out of, in connection with or resulting from the sale governed hereby of the Products, including, but without limitation, the manufacture, repair, handling, installation, possession, use, operation or dismantling of the Products and any and all claims, actions, suits, and proceedings which may be instituted in respect to any of the foregoing.
Subject to the limitations and exclusions contained in this paragraph, Products sold hereunder are covered by a limited warranty against defects in material and workmanship provided the Products and services are subjected to normal use and service. The applicable limited warranty period is twelve (12) months from the date of installation or fifteen (15) months from shipping date to Purchaser of any item of the Products, whichever occurs first, or any other limited warranty period otherwise stipulated in writing by FROMM relating to the Quotation. For Products or Product components not supplied by FROMM, the original manufacturer’s warranty shall apply to the extent assignable by FROMM. The obligations of FROMM under this limited warranty are restricted to the repair or replacement, at FROMM’s sole option, of defective parts f.o.b. point of shipment provided that prompt notice of any defect is given by Purchaser to FROMM in writing within the applicable limited warranty period and that upon the Purchaser’s return (at Purchaser’s sole expense) of the defective parts to FROMM or, if designated by FROMM, to such other location designated by FROMM, properly packed and with transportation charges prepaid by Purchaser, an inspection thereof shall reveal to FROMM’s satisfaction that Purchaser’s claim is valid under the terms of this limited warranty. Purchaser shall assume all responsibility and expense for dismantling, removal, re-installation and freight in connection with the foregoing. The same obligations and conditions extend to replacement parts furnished by FROMM hereunder. FROMM does not assume liability for installation, labour or consequential damages. FROMM makes no warranty other than as expressly set forth in this paragraph. All other warranties and conditions, whether statutory, legal, expressed or implied, including but not limited to any expressed or implied warranty or condition of merchantability, of fitness for the intended use thereof or against infringement are hereby expressly excluded to the greatest extent permitted by applicable laws. The foregoing applicable limited warranty ceases to apply and be effective if the Products are altered by Purchaser or any other persons or are repaired other than by persons authorized or approved in writing by FROMM to perform such repair work. Repairs or replacement deliveries do not interrupt or prolong the term of the foregoing limited warranty. The above limited warranty ceases to be effective if Purchaser fails to operate and use the Products sold hereunder in a safe and reasonable manner and in accordance with any written instructions from FROMM or any other manufacturers or Purchaser fails to use Products in a manner suitable for the proper operation of such Products.
Unless otherwise expressly stipulated by FROMM in writing, the Products shall be installed by and at the risk and expense of Purchaser. In the event that FROMM is requested to supervise such installation, FROMM’s responsibility shall be limited to exercising that degree of skill customary in the trade in supervising installations of the same type. Purchaser shall remain responsible for all other aspects of the installation work, including compliance with all local laws and regulations at Purchaser’s sole expense.
No Products may be returned to FROMM without FROMM’s prior written permission. FROMM reserves the right to decline all returns or to accept them subject to a handling/restocking charge. Even after FROMM has authorized the return of Products for credit, FROMM reserves the right to adjust the amount of any credit given to Purchaser on return of the Products based on the conditions of the goods on arrival in FROMM’s designated warehouse. Credit for returned Products will be issued to Purchaser only where such Products are returned by Purchaser and not by any subsequent owner of the Products. Products will be considered for return only if they are in their original condition and packaging.
Unless otherwise stated in the Quotation, invoices on “open account” shipment are payable within thirty (30) calendar days of the invoice date. Where the total purchase price exceed $15,000, invoices are payable as to 50% due with Purchaser’s acceptance of FROMM’s Quotation, as to a further 40% due upon written notice to Purchaser by FROMM that the Products are ready to be shipped and the remaining 10% due on a Net 30 days basis once the installation of the Products is completed. Unless specifically provided, no cash discount shall be available to Purchaser. When cash discount is offered, the discount price is computed from the date of invoice. FROMM does not offer cash discount on C.O.D. shipments. Should payment not be made to FROMM when due, FROMM reserves the right, until the price has been fully paid in cash, to charge Purchaser with interest on such overdue payments at the rate of two percent (2%) per month (or 24% per annum). The charging of such interest shall not be construed as obligating FROMM to grant any extension of time in the terms of payment. Payments shall be made without any deduction or withholding for any foreign taxes or other amounts. To the extent Purchaser is required by local laws to deduct any local withholding taxes, the payments owing shall be increased, on a dollar-for-dollar basis, to the extent necessary so that FROMM receives the full amount of all such payments owing to it hereunder by Purchaser. Until payment in full is made by Purchaser to FROMM for the Products purchased under the Quotation, all right, interest and title to the Products (and each component thereof) is reservet to, and remains with, FROMM and shall not transfer to Purchaser under any circumstances whatsoever.
Orders accepted by FROMM are not subject to changes or cancellation by Purchaser, except with FROMM written consent. In such cases where FROMM authorizes changes or cancellation, FROMM reserves the right to charge Purchaser with reasonable costs based upon expenses already incurred and commitments made by FROMM, including, without limitation, any labour completed, material purchased and also including Supplier’s usual overhead and reasonable profit and cancellation charges from FROMM’s suppliers. Upon the occurrence of any Force Majeure Event that is continuing, FROMM reserves the express right to cancel all or part of the Quotation by notice in writing to Purchaser and, in such case, (A) Purchaser hereby waives all claims for loss or damage due to such cancellation and (B) at FROMM’s discretion, acting reasonably, any deposit or prepayment of all or any part of the purchase price for such cancelled Products shall be refunded by FROMM to Purchaser, less a reasonable cancellation, handling and/or restocking charge.
Any written acceptance and official confirmation of Purchaser’s order by FROMM (in accordance with the Quotation and these Terms and Conditions) in any form (electronic, fax or otherwise) shall constitute the complete and entire agreement, and shall supersede all previous quotations, orders or agreements originating from Purchaser or its agents. No verbal or written terms not included in these terms and conditions shall be binding on FROMM. The laws of the Province of Ontario (and the federal laws of Canada applicable therein) shall expressly and solely govern the execution, delivery, validity, interpretation, performance and enforcement of these Terms and Conditions (and the Quotation relating thereto). The parties expressly agree that all of the provisions of the United Nations Convention for the International Sale of Goods are hereby expressly excluded. Purchaser agrees to defend, indemnify and hold FROMM harmless for any liability for any losses, costs, liabilities, expenses, damages, third party claims and/or proceedings (including reasonable legal fees and costs) in connection, directly or indirectly, with the performance by the Purchaser of its obligations hereunder and/or the Purchaser’s ownership, installation and/or use of all or part of the Products purchased hereunder. The pricing and other provisions of the Quotation shall be held in strict confidence by Purchaser and not disclosed by Purchaser to any third parties, except for Purchaser’s employees, contractors and professional advisors who require disclosure of such information to assist Purchaser to perform its obligations hereunder or resolve any disputes hereunder.