TERMS & CONDITIONS OF QUOTATION AND SALE (Amended May 8, 2013)
ALLMAR INC. (“Allmar“)
ANY ORDER OF THE BUYER RESULTING FROM ALLMAR’S QUOTATION IS EXPRESSLY CONDITIONED UPON THE BUYER’S CONSENT TO ALLMAR’S STANDARD TERMS AND CONDITIONS PRINTED BELOW. 1. Quotation Only:
Quotations, prices, specifications and dates for delivery referenced in Allmar’s Quotations are for information purposes only and shall not be binding on Allmar until all technical requirements have been agreed to and Allmar has accepted the Buyer’s order. Upon such requirements having been settled and upon Allmar’s acceptance of the Buyer’s order, this Quotation shall become and for all intents and purposes be treated as a sales order, whereby the terms and conditions noted below shall become terms and conditions of sale. The attached Quotation shall terminate if not accepted by the Buyer within thirty (30) days of the date of the Quotation. 2. Prices, Taxes and Import Duties:
Prices do not include delivery, taxes, or import duties (including brokerage fees) applicable to the goods sold in this transaction or the cost of unloading, storage or protection at the job site, unless otherwise specified in the Quotation. Any increase in such included delivery, taxes and import duties after the date of the Quotation shall increase the Price accordingly. Taxes will be added by Allmar to the sale price where Allmar invoices same, and will be paid by the Buyer unless the Buyer provides Allmar with a proper tax exemption certificate. 3. Shipment and Delivery:
Allmar shall not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the control of either Allmar or Allmar’s suppliers or agents, including but not limited to war, sabotage, insurrection, riot or other acts of civil disobedience, acts of a public enemy, failure or delay in transportation, act of any government or agency or subdivision thereof, judicial action, labour dispute, accident, fire, explosion, flood, storm or other act of God, shortage of labour, fuel, raw material or machinery or technical failure where Allmar has exercised ordinary care in the prevention thereof. Allmar may deliver the goods in installments. While every reasonable effort shall be made by Allmar to adhere to proposed delivery dates, all shipping dates are approximate only.
Allmar shall not be deemed to assume any liability in connection with the shipment nor shall the carrier be construed to be the agent of Allmar. The Buyer must provide its own insurance. Risk of loss or damage to all goods sold hereunder shall pass from Allmar to the Buyer at the point of delivery to the possession of the carrier. Any claims for loss, damage or misdelivery thereafter shall be filed with the carrier. The cost of any special packing or handling by Allmar shall be added to the amount of the order.
Allmar cannot hold or store completed orders beyond the dates specified in the Quotation. Accordingly, if the Buyer is unable, for any reason whatsoever, to take delivery on the date specified Allmar reserves the right to invoice the order, and the Buyer agrees to pay for the goods, together with any storage fees associated therewith. 5. Inspections:
All goods shall be deemed to have been finally inspected and accepted within seven (7) days after delivery, unless a notice of deficiency is given in writing to Allmar within such a period. Acceptance shall constitute acknowledgement of full performance by Allmar of all obligations under the contract except as provided under Section 8 (warranties). Allmar shall have a reasonable amount of time to correct any such agreed upon deficiencies. 6. Credits and Returns:
Goods may only be returned to Allmar after obtaining Allmar’s authorization and returns for credit will not be accepted unless such return is first authorized by Allmar in writing. No returns for credit will be allowed on custom-ordered goods. All returns shall be subject to a 25% restocking fee (without exception). 7. Terms of Payment:
A 50% deposit may be required for custom or special orders. Terms of payment (on approved credit) shall be net thirty (30) days from the date of invoice. All invoice amounts must be paid in full without deduction, withholding, set off or counterclaim of any kind. Credit card payments on account will only be accepted on invoices paid within terms to a maximum of $2,000 per month. Allmar may, in its sole discretion, require payment in advance and, if such requirement is not met, may cancel the order or any part thereof and receive reasonable cancellation fees. If the Buyer fails to pay any payment due hereunder when due, Allmar may recover, in addition to the payment, interest thereon at a rate of 18% per annum, and reasonable legal fees, if applicable. 8. Warranties:
9. Limitation of Liability and Buyer's Indemnity:
The Buyers’ sole product warranty shall be that provided by the product manufacturer. In the case of installation completed by Allmar, Allmar warrants that such workmanship shall be free from defects under normal use (regular wear and tear excepted) for a period of one (1) year following the substantial completion of such work. Provided that the Buyer notifies Allmar in writing of any claimed defects in goods or installation immediately upon discovery of such defects, Allmar shall repair or, at its option, replace the agreed upon defective work or goods. Allmar shall have a reasonable amount of time to correct any such agreed upon defects. Under no circumstance shall Allmar’s liability exceed the value of the defective goods, or the costs of the initial installation.
If the Buyer fails to pay when due any portion of the purchase price or any other payment required from the Buyer to Allmar under this contract or otherwise, all warranties and remedies granted herein may at Allmar’s option be terminated.
THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS, EXPRESS OR IMPLIED WITH RESPECT TO THE GOODS, THE INSTALLATION, AND ANY DEFECTS THEREIN OF ANY NATURE WHATSOEVER. ALLMAR SHALL NOT BE LIABLE FOR AND THE BUYER ASSUMES ALL RISK OF, ANY ADVICE OR FAILURE TO PROVIDE ADVICE BY ALLMAR TO THE BUYER REGARDING THE GOODS OR THE BUYER’S USE OF SAME. UNDER NO CIRCUMSTANCE SHALL ALLMAR BE LIABLE TO THE BUYER UNDER ANY TORT, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY CLAIM AND THE BUYER AGREES TO WAIVE SUCH CLAIMS. ALLMAR’S SOLE AND EXCLUSIVE LIABILITY, AND THE BUYER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY NON-CONFORMITY OR DEFECT IN THE PRODUCTS, INSTALLATION, OR ANYTHING DONE IN CONNECTION WITH THIS CONTRACT, IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL BE AS SET FORTH IN THIS SECTION. THE BUYER SPECIFICALLY ACKNOWLEDGES THAT ALLMAR’S PRICE FOR THE PRODUCT IS BASED UPON LIMITATIONS OF ALLMAR’S LIABILITY AS SET FORTH IN THIS CONTRACT.
10. Contract Form:
In no event, regardless of the form of action, shall Allmar be liable for any special, indirect, incidental or consequential loss or damages arising out of the sale of its products to buyers or arising out of anything done in connection with the contract including, but not limited to, losses or damages arising out of claims for loss of use, business, goodwill, or profits, and claims arising out of third party actions, regardless of whether such third party actions, or any other claims, losses or damages, were reasonably foreseeable to buyers or suppliers. The Buyer’s exclusive remedy arising out of his purchase and use of Allmar’s goods, or arising out of anything done in connection with the contract, shall be for damages and no claim or claims of any kind, whether based upon contract, warranty, tort (including, but not limited to, negligence, warranty and strict liability), statutory or regulatory provisions, indemnity, contributions, or otherwise, shall be greater in amount in aggregate than the purchase price of the products and services in respect of which damages are claimed.
The Buyer shall indemnify and hold harmless Allmar, its officers, agents, employees, subsidiaries, parents, affiliates and insurers from and against any and all liability, damages, losses, claims, lawsuits, including the cost and expenses in connection therewith, for death or injury to any person or loss of any property whatsoever, caused in any manner by the Buyer’s possession, use or operation of the goods.
In the event that the Buyer issues its own purchase order based on the attached Quotation, the standard terms and conditions of Quotation and sale herein are hereby deemed to be part of the said purchase order. In the event that the Buyer issues its own contract, based on the attached Quotation, standard CCDC 2 or CCA 1 stipulated price subcontract terms and conditions shall apply. Buyer holdback shall not be applicable in the case of supply only contracts.