TERMS & CONDITIONS OF SALE
General
The following terms and conditions of sale shall apply to any sale of goods and services by DPEC FOOD SOLUTIONS INC. (referred to in this Agreement as “DPEC”). Purchaser shall be deemed to have full knowledge of the terms and conditions herein and such terms and conditions shall be binding if either the goods or services referred to herein are delivered to and accepted by Purchaser. In the event of any conflict or inconsistency between the terms and conditions of sale herein and the terms and conditions contained in Purchaser’s order or in any other form issued by Purchaser, whether or not any such form has been acknowledged by DPEC, DPEC’s terms and conditions herein shall prevail. No waiver, alteration or modification of these terms and conditions shall be binding upon DPEC unless made in writing and signed by a duly authorized representative of DPEC.
Quotes & Pricing
Unless otherwise stated, DPEC’s quotation shall be null and void unless accepted by the Purchaser within thirty (30) days from the date of quote. All prices are subject to change without notice and are therefore considered non-binding. Verbal or written quotes shall be valid for 30 days from date of quote. Unless otherwise agreed, all goods are invoiced at the prices in effect at the time of the shipment. Possession of price information by any person is not to be construed as an offer to sell the goods at the prices therein. Unless otherwise specified in writing, DPEC has the right to change the price, freight allowance or terms of payment specified herein, provided DPEC has given the Purchaser at least fifteen (15) days prior written notice of any such change.
Terms of Payment
Unless otherwise agreed upon in writing, 50% of the Purchase Price is due upon entering into a transaction with DPEC, with the remaining balance due on delivery of the goods. A monthly interest charge of 2% per month is charged to unpaid balances after 30 days from the date of invoice.
DPEC confirms that the terms of use of the Payment Processor utilized by DPEC shall apply. Such terms and conditions of use for payment processing is handled by Moneris, under their terms of payment available online (www.moneris.com).
If DPEC commences a legal action, suit or claim to collect any monies owing or unpaid balances, the Purchaser shall indemnify and hold DPEC harmless from all costs and expenses incurred by DPEC in connection therewith, including without limitation, legal fees.
Acceptance
All orders are subject to acceptance by DPEC. No changes or modification of these Terms and Conditions shall be binding upon DPEC unless such changes are made in writing and signed by DPEC. No provisions of the Purchaser’s order which contradict, modify or add to any of the provisions shall be binding unless made in writing and signed by a duly authorized representative of DPEC. In no event shall any claim for consequential or special damages are made by the Purchaser.
The Purchaser accepts all risks incidental to the use of the goods sold.
Purchaser’s Warranty
The Purchaser warrants and acknowledges that it (1) has expertise with respect to the goods, any articles made from the goods, and their properties, (2) is familiar with the nature and use of the goods, (3) has received, read and understood DPEC’s labelling and other literature concerning the goods, including without limitation technical information provided by the manufacturer or supplier of the good(s), including without limitation technical information provided by the manufacturer of the material(s) used in making the goods, and (4) is aware of and understands the methods and requirements for proper storage and handling of the goods and appreciates the significant potential for product degradation and/or failure that may result from improper storage and handling. Purchaser agrees and warrants that it will advise all customers and users of the goods or articles made from the goods of the risk of degradation and/or failure resulting from improper storage and handling of the goods.
Taxes and Other Charges
Unless specified otherwise in writing, the sale price for goods does not include any Harmonized Sales Tax, Goods and Services Tax, applicable sales, gross receipts, governmental, Provincial or Municipal sales, use, value-added or other similar tax. Accordingly, in addition to the price specified herein, the amount of any present or future sale, use, value-added or similar tax applicable to the sale of the goods hereunder to or the use of such goods by Purchaser shall be paid by Purchaser to the entire exoneration of DPEC. Unless specified otherwise in writing, responsibility for completion of all export and import duty and tax documentation for it applies to the purchase of goods from DPEC and all related costs, will rest exclusively with the Purchaser.
Delivery
Unless otherwise agreed in writing, delivery is F.O.B. the shipping point. Transit risks are borne by the Purchaser, even in cases where the goods may be delivered free of charge. Delivery dates indicated in quotes may be subject to change due to conditions beyond DPEC’s control, such as fires, accidents, strikes, etc. DPEC will exercise all reasonable effort to meet specified delivery dates, but cannot guarantee it will do so or be held responsible, for added costs or expenses which may result from such delays. The Purchaser is not entitled to withdraw wholly, or partially, from the order due to a delivery delay.
Force Majeure
DPEC shall not be responsible for or liable for any loss or damage incurred by the Purchaser herein resulting from causes beyond the reasonable control of DPEC 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, or failure of DPEC’s suppliers to meet their delivery promises. The acceptance of delivery of the equipment by Purchaser shall constitute a waiver of all claims for loss or damage due to any delay whatsoever.
Title
Title to the goods or any part thereof shall not pass from DPEC to Purchaser until all payments due hereunder have been duly made in cash, except as otherwise expressly stipulated herein. The goods shall be and remain personal or moveable property, notwithstanding their mode of attachment to realty or other property. If default is made in any of the payments herein, Purchaser agrees that DPEC may retain all payments which have been made on account of the purchase price as liquidated damages, and DPEC shall be free to enter the premises where the goods may be located and remove them as DPEC’s property, without prejudice to DPEC’s right to recover any further expenses or damages DPEC may suffer by reason of such nonpayment.
Security
If at any time the Purchaser’s financial responsibility appears unsatisfactory to DPEC and the Purchaser fails to provide at DPEC’s request satisfactory security in advance of any shipment, or if Purchaser fails to comply with the terms of payment hereunder, DPEC may then without prejudice to any of its other rights, defer any shipment hereunder until the Purchaser fulfills such obligations.
Installation
The goods shall be installed by and at the risk and expense of the Purchaser. In the event that DPEC is requested to supervise or undertake such installation, DPEC’s responsibility shall be limited to exercising that degree of skill customary in the trade in supervising or undertaking installations of the same type. Purchaser shall remain responsible for all other aspects of the work including compliance with any and all local regulations.
Returned Goods
Goods may not be returned without the prior authorization of DPEC. DPEC reserves the right to decline all returns or to accept them subject to a handling/restocking charge of 50%. Goods returned for credit must be returned within five (5) days after receipt and must be accompanied by DPEC’s order number and date of purchase. Returns of used products are subject to inspection and a restocking charge of 50% or more may apply. Custom items or special order merchandise including all nonstandard items are not returnable. Material will not be accepted for return unless written authorization from DPEC has been issued. Specialty-fabricated or special order goods will not be accepted for return.
Changes and Cancellation
Purchaser may only cancel this contract upon written notice consenting to the cancellation by DPEC and only upon such terms as will indemnify and reimburse DPEC for all loss or damage resulting therefrom, plus DPEC’s direct costs incurred, overhead, reasonable profits, costs and expenses to which DPEC has become committed for fulfillment of the contract prior to cancellation, including, without limitation, any labour done, materials purchased and also including any supplier’s usual overhead and reasonable profit and cancellation charges from DPEC’s suppliers. On orders for special goods or goods requiring special handling, a charge will be made for labour and material expended by DPEC.
Contingencies
DPEC reserves the right to cancel in whole or any portion thereof, any order deemed overly difficult or impossible due to unforeseen causes. In such cases DPEC is under no obligation for compensation or for subsequent delivery.
Limitation of Liability
DPEC 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 or the goods, including, but without limitation, the manufacture, repair, handling, installation, possession, use, operation or dismantling of the goods, and any and all claims, actions, suits, and proceedings which may be instituted in respect to the foregoing. In no event shall DPEC be liable for any special, indirect, incidental or consequential damage or expense of any character, including but not limited to loss of use of productive facilities or equipment, lost profits, property damage, personal injuries or lost production, whether suffered by the Purchaser or any third party, irrespective of whether claims or actions for such damages are based upon contract, tort (including negligence and negligent misrepresentation), warranty, strict liability, or otherwise.
Indemnification
The Purchaser indemnifies and saves DPEC harmless from any and all legal fees, costs, damages, and expenses of any kind incurred by DPEC in dealing with, contesting, or defending any claim, liability, loss or any other expense or damage sustained by reason of injury to person or property for which DPEC may be sued, or become liable solely or jointly as a result of any claim based upon the Purchaser’s use or resale or use by any successor of DPEC’s supplied product.
Assignment
Assignment or transfer of this contract, and of any interest herein, or of any money due or to become due under the terms of this Agreement without the prior consent of DPEC, shall be void.
Sale of Goods Act (Ontario) and UN Convention on Contracts for the International Sale of Goods Do Not Apply
The Purchaser and DPEC agree that the Sale of Goods Act (Ontario) and the United Nations Convention on Contracts for the International Sale of Goods, or any amendment thereto, shall not apply to this Agreement.
Entire Agreement
An acceptance and official confirmation of Purchaser’s order by DPEC shall constitute the complete agreement, subject to the terms and conditions of sale herein set forth, and shall supersede all previous quotations, orders or agreements.
Interpretation and Choice of Forum
The law of the Province of Ontario shall govern the validity, interpretation and enforcement of these terms and conditions of sale and of any contract of which these terms and conditions are a part.