Last Update: Iss.02 Rev 01. – 5/9/2017
GENERAL TERMS and CONDITIONS for SALE of GOODS and/or SERVICES
1. GENERAL: The terms and conditions contained herein apply to any Agreement (as defined herein) with Source Atlantic Limited including all of its divisions, business units or business names under which it carries on business (collectively, “Source Atlantic”).
Acceptance of a quotation by the Purchaser, or the commencement of any work by Source Atlantic, shall constitute acceptance of these terms and conditions, which shall apply to and govern all goods and services including the supply of labour and material (collectively herein referred to as “Goods”) provided by Source Atlantic. In this case, the Purchaser and Source Atlantic have entered into a binding contract (herein referred to as “Agreement” which shall include any contract, quotation, proposal, purchase order, document or other agreement to which these general terms and conditions are attached or referred to including all exhibits and schedules and the expressions “hereof”, “herein”, “hereto”, “hereunder”, “hereby” and similar expressions refer to this Agreement and not to any particular section, exhibit or schedule or other portion of this Agreement.). As used herein, “Purchaser” shall mean the person or persons party to this Agreement other than Source Atlantic. If more than one person is identified as the Purchaser than “Purchaser” shall mean all of the persons identified, jointly and severally.
2. QUOTATIONS: Unless otherwise stated, Source Atlantic quotations are valid for a period of thirty (30) days. Pricing is net in Canadian dollars, FCA Source Atlantic’s facility as determined by Source Atlantic. Pricing is subject to correction for error. The Purchaser shall pay or reimburse Source Atlantic for all sales, use, excise, personal property, value-added, or other applicable federal, provincial or local taxes, duties, or any similar assessments. Without limitation, orders for special or custom Goods, as designated or determined by Source Atlantic, may not be returned or cancelled and may require payment in full at time of order placement.
3. FREIGHT and SHIPPING: Unless mutually agreed to between Source Atlantic and the Purchaser, Goods will be domestically packaged and shipped in a manner selected or determined by Source Atlantic in accordance with its standard practices, as updated or amended from time to time (including, without limitation, by the means of transport as selected by Source Atlantic). Unless mutually agreed to between Source Atlantic and the Purchaser, Goods will be shipped and charged FCA Source Atlantic’s facility as determined by Source Atlantic plus additional handling fees and other applicable fees. Source Atlantic reserves the right to make partial shipments.
Source Atlantic’s responsibility for Goods ceases upon delivery to the carrier. Should loss or damage occur during shipment, Purchaser’s claim shall be solely against the carrier. Source Atlantic will provide the Purchaser reasonable assistance in such a claim, provided Source Atlantic is given written notice by the Purchaser within ten (10) days following shipment.
Source Atlantic assumes no responsibility for loss of, or damage to, any Purchaser-owned equipment (including, but not limited to, parts, components and tools) that is free-issued, loaned or otherwise provided to Source Atlantic. This applies during both transit and assembly, whether at Source Atlantic’s premises or not.
4. TITLE: Title to the Goods shall pass to the Purchaser upon receipt of payment in full by Source Atlantic. Until such payment is received, the Goods shall remain moveable property of Source Atlantic. If Purchaser defaults on any payments, Source Atlantic may retain any and all partial payments as liquidated damages and Source Atlantic shall be free to enter the premises where the Goods are located and remove them as Source Atlantic property. This does not however, constitute sole remedy by Source Atlantic in the event of non-payment.
5. TERMS of PAYMENT: The Purchaser agrees to pay Source Atlantic the amount set out in any invoice from Source Atlantic to the Purchaser. All invoices shall become due and payable by the Purchaser within thirty (30) days following completion of any services and/or shipment of the goods by Source Atlantic. If a Purchaser requests a delay in shipment or is unable to take delivery of the Goods at the time when such Goods are available for delivery by Source Atlantic, then such Goods will be deemed to be delivered at the time such Goods arrive at Source Atlantic’s facility or, at Source Atlantic’s option, when such Goods are available for delivery by Source Atlantic, and Source Atlantic will immediately invoice the Purchaser for such Goods, and payment will be due within thirty (30) days from such invoice.
The price of any item that is not stocked by Source Atlantic and is ordered for a Purchaser at its request shall be due and payable immediately at the time such order is received by Source Atlantic and shall be invoiced and paid in full by any cash-only or non-account Purchaser at such time. Nothing herein shall obligate Source Atlantic to order item prior to receipt of payment in full from the Purchaser.
Interest will be charged on overdue accounts at the rate of two percent (2%) per month. Purchaser shall reimburse Source Atlantic for all reasonable costs incurred (including reasonable attorneys’ fees) in collecting past due amounts. Unless otherwise agreed to by Source Atlantic at its discretion, payment, by credit card, will not be accepted.
6. DELIVERY and DELAYS: Quoted deliveries are approximate and are based on conditions at time of quotation. Such deliveries are subject to change. Source Atlantic will make all reasonable efforts to meet delivery dates as requested by the Purchaser on a purchase order, provided such dates have been both agreed to and acknowledged by Source Atlantic. Source Atlantic however, assumes no liability for late delivery, including, but not limited to, financial penalties and direct or consequential damages.
7. CHANGES, SUSPENSION and CANCELLATION: Unless approved in writing by Source Atlantic, orders are not subject to changes, suspension or cancellation by the Purchaser. Where Source Atlantic authorizes such changes, suspension or cancellation, Source Atlantic reserves the right to charge the Purchaser with reasonable costs based on expenses already incurred, including but not limited to, labour completed, material ordered, reasonable profit and resulting cancellation charges from Source Atlantic suppliers.
8. WARRANTY: Source Atlantic disclaims all warranties whether express or implied in respect of the Goods provided hereby, including the implied warranties of fitness for a particular purpose, merchantability, non-infringement and compliance with applicable national, provisional and local laws, codes and regulations. Unless otherwise stated in the quotation, Source Atlantic warrants that the workmanship of any services provided shall be free from defects for a period of one year after performance of such services. The liability and obligation of Source Atlantic to the Purchaser in respect of any defect in respect of any services shall be limited, at Source Atlantic’s option, to the correction of the defect or the reperformance of such services. For all products manufactured by parties other than Source Atlantic, the original manufacturer, not Source Atlantic, shall provide any warranty and technical support in respect of such product. The warranties and technical support may vary from product to product. In the event of a breach of the above warranty, written notice thereof shall be given to Source Atlantic promptly, but not later than ten (10) days from the date such defect is discovered by the Purchaser. This Section shall constitute Purchaser’s sole and exclusive remedy for breach of the above express warranty. Warranty of any serviced goods, shall be conducted at Source Atlantic’s facility as determined by Source Atlantic. Any and all freight costs to be paid for by the Purchaser. Except as provided in this Section, all work hereunder are provided “as is” without any warranty whatsoever. Purchaser recognizes that the “as is” clause of this Agreement is an important part of the basis of this Agreement, without which Source Atlantic would not have agreed to enter into this Agreement. Source Atlantic expressly disclaims all other warranties, terms or conditions, express, implied or statutory, regarding the work, including any warranties of merchantability, title, fitness for a particular purpose and infringement. No representation or other affirmation of fact, regarding the Goods (including any services provided hereunder) shall be deemed a warranty for any purpose or give rise to any liability of Source Atlantic whatsoever. Purchaser acknowledges that it has relied on no warranties other than the express warranty in this Agreement.
9. HAZARDOUS MATERIALS: Source Atlantic disclaims all warranties whether express or implied in respect of details on all Goods, including product descriptions, brand names, labels, material safety data sheets (MSDS), federal and provincial product registration numbers and other information provided, prepared or made in reliance upon the manufacturer or supplier of the Goods.
10. RETURN OF GOODS: The Purchaser may return Goods, only upon receipt of written authorization by Source Atlantic, which authorization shall be in its sole discretion. Source Atlantic reserves the right to decline the return or to accept it subject to a restocking charge in its sole discretion. Without limitation, no returns will be accepted by Source Atlantic unless the return of Goods is made within 10 days of delivery and the Goods accompanied by a proof of purchase, are in the original package and in new, unused and resalable condition. Any credit due the Purchaser for the return of Goods, is at the sole discretion of Source Atlantic and is subject to Source Atlantic’s satisfaction as to the condition of the Goods at the time received by Source Atlantic.
11. DEFAULT: If the Purchaser defaults under the Agreement by failing to make payments as required or commits any other breach of contract, Source Atlantic may, without notice and without prejudice to any other right it may have under the Agreement, at common law or otherwise, suspend performance of the Agreement and/or terminate the whole or any part of the Agreement.
12. INDEMNITY: The Purchaser shall indemnify and hold Source Atlantic harmless from and against any and all claims, demands, causes of action, loss, cost, damage and expense (herein referred to as “Claims”) arising out of, or in connection with, the performance or non-performance of the services or the provision of the Goods provided hereunder including, without limitation, Claims arising from injuries (including death) to any person and loss of or damage to property, in any way sustained, or alleged to have been sustained, in connection with or arising out of the performance or non-performance of the services or the provision of the Goods by Source Atlantic, its agents, employees or subcontractors.
13. FORCE MAJEURE: If the performance of any part of the Agreement is prevented, hindered or delayed by reason or any cause or causes beyond the reasonable control of Source Atlantic including, without limitation: acts of God or nature; labour disputes; sovereign acts of any federal, provincial or foreign government; or shortage of materials), Source Atlantic shall be excused from such performance to the extent that it is necessarily prevented, hindered or delayed thereby during the continuance of any such happening or event, and the Agreement shall be deemed suspended as long as and to the extent that any such cause prevents or delays its performance.
14. LIMITATION OF LIABILITY: Not withstanding any other provision of this Agreement or any other terms in a work order, invoice, direction or instruction relating to the Goods, Purchaser waives all liability of Source Atlantic its affiliates, associates, employees, contractors, agents or others for whom in law it is responsible in tort including negligence, whether contributory, sole or joint. Source Atlantic shall not be liable to Purchaser for any incidental, indirect, exemplary, special, punitive or consequential damages, under any circumstances, including, but not limited to: lost profits, revenue or savings, loss of use, down-time, or cost of a substitute product even if Source Atlantic had been advised of, knew, or should have known, of the possibility thereof. Under no circumstances shall Source Atlantic’s aggregate cumulative liability hereunder, whether in contract, tort, negligence, misrepresentation, strict liability or otherwise, exceed the lesser of (i) total amount actually paid to Source Atlantic pursuant to this Agreement in the six (6) month period preceding or (ii) at the option of Source Atlantic, for any product provided hereunder, or part thereof, which gives rise to the claim, the amount of a replacement of the product or the amount of the repair of such product. Purchaser acknowledges that the fees paid by it reflect the allocation of risk set forth in this Agreement and that Source Atlantic would not enter into this Agreement without these limitations on its liability. Notwithstanding any other provision of the Agreement, Source Atlantic shall not be liable to the Purchaser or any third party for any special, indirect, incidental or consequential damage.
15. PRIORITY: In the event of any conflict between these general terms and conditions and any other provision of this Agreement, the provision of these general terms and conditions shall govern to the extent of such conflict unless otherwise expressly set out herein. In the event of conflict or inconsistency between the express provisions set out in any quotation prepared by Source Atlantic Limited, the provision of such quotation shall govern to the extent of such conflict except in respect of Sections 12, 13 and 14 hereof.
16. ASSIGNMENT: The Agreement shall not be assigned by the Purchaser without the prior written consent of Source Atlantic.
17. SUCCESSORS AND ASSIGNS: The Agreement shall enure to the benefit of, and is binding upon, the parties hereto, their successors and permitted assigns.
18. GOVERNING LAW: The Agreement shall be interpreted, construed, governed by, and the relations between the parties are to be determined in accordance with the laws in force in the Province of New Brunswick and the parties agree to submit to the exclusive jurisdiction of the Courts of such province.
19. RELATIONSHIP: Source Atlantic shall be and act as an independent contractor hereunder and no employee of either party shall be deemed to be an employee of the other for any purpose whatsoever. Neither party may bind the other in any way. Nothing in this Agreement will be construed to make either party the agent or legal representative of the other or to make the parties partners or joint venturers.
20. WAIVER: The waiver of one breach or default shall not constitute the waiver of any subsequent breach or default, and shall not act to amend or negate the rights of any party.
21. INTERPRETATION: Words importing the singular include the plural and vice versa; words importing gender include all genders. This Agreement, including any exhibits, schedules and attachments hereto, constitute the entire agreement between the parties pertaining to the subject matter hereof and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties. The headings contained herein are included solely for convenience of reference, are not intended to be full or accurate descriptions of the contents thereof and shall not be considered part of this Agreement. Time shall be of the essence of this Agreement. If any covenant or provision of this Agreement is prohibited in whole or in part in any jurisdiction, such covenant or provision shall, as to such jurisdiction, be ineffective to the extent of such prohibition without invalidating the remaining covenants and provisions hereof and shall, as to such jurisdiction, be deemed to be severed from this Agreement to the extent of such prohibition. Except as specifically set forth or referred to herein, nothing herein, express or implied, is intended or shall be construed to confer upon or to give any person, other than the parties and their respective successors and assigns, any rights or remedies under or by reason of this Agreement. This Agreement may not be amended or modified in any respect, except by written instrument executed by the parties hereto.