Terms and Conditions of Sale.
These terms and conditions govern the sale of Products (“Product or Products”) and provisions of services (“Services”) by Kalou Canada Inc. and its affiliates (“Seller”) as well as by third party vendors and/or service providers of Seller. These terms and conditions (“Agreement”) take precedence over Buyer’s supplemental or conflicting terms and conditions to which notice of objection is hereby given. Seller’s failure to object to conflicting or additional terms and conditions will not change or add to the terms and conditions of this agreement. Neither Seller’s commencement of performance or delivery shall be deemed or construed as acceptance of Buyer’s supplemental or conflicting terms and conditions. Buyer’s acceptance of the Products and/or Services from Seller shall be deemed to constitute acceptance of the terms and conditions contained herein.
Kalou Canada Inc. reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms and Conditions at any time without notice.
QUANTITIES
The quantities of the Products are those quantities specified on the Seller’s quotation.
The quantities on the Seller’s quotation are based on the Buyer’s request for quotation.
The Seller shall not be responsible for verifying the quantities of Products desired or required by the Buyer. The Seller shall not be expected to make any allowances for errors in quantities of Products on Buyer’s request for quotation or Orders placed by the Buyer. The Seller shall not be expected to make any allowances for Products that are lost or broken during, but not limited to, storage, delivery, installation or use. The Buyer shall be responsible for verifying all quantities of Products.
PRICES
The prices of the Products are those prices specified on the Seller’s quotation.
The currency of the prices is the currency specified on the Seller’s quotation.
The prices of the Products are contingent on the Product descriptions, quantities and UOMs specified on the Seller’s quotation.
Seller reserves the right to change, at its sole discretion, the prices of quoted Products without notice. Seller reserves the right to correct errors, inaccuracies or omissions.
Price quotations shall automatically expire in thirty (30) days from the date issued.
Pricing for undelivered Products may be increased due to causes beyond the Seller’s reasonable control.
NEW ACCOUNTS
Any request for a new account must be accompanied by a signed and completed Credit Application. A minimum of two weeks will be required for credit checks.
ORDERS
All Orders placed by the Buyer must identify the Products, item numbers, unit quantities, UOMs, applicable unit prices, applicable currency, purchase Order number, date of Order, requested delivery dates, shipping instructions and billing information for the Products being purchased.
All Orders placed by Buyer are subject to acceptance by Seller, via an Order Acknowledgement.
Seller does not guarantee the availability of any Product and reserves the right to discontinue or change the technical or design specifications of its Products at any time without notice. Seller may in its sole discretion allocate Product among its Customers.
Orders may not be cancelled or rescheduled, partial or otherwise, without Seller’s written consent. If a cancellation request from the Buyer is accepted by the Seller with written consent, the Buyer shall be invoiced a supplemental cancellation charge equal to a percentage, determined at the sole discretion of the Seller, of the cancelled Order value.
SHOP DRAWING SUBMITTALS
At the Seller’s sole discretion, one shop drawing per Product may be submitted by the Seller to the Buyer to sign off or mark up for revision.
It is recommended that the Buyer discuss any questions or comments with the Seller before signing off the shop drawing or marking up the shop drawing for revision. The Seller, at the Seller’s sole discretion, may reject any question, comment or mark up, without limitation, liability or penalty.
If a shop drawing is submitted by the Seller to the Buyer, then the price of the Product quoted is inclusive of one shop drawing and up to one revision per shop drawing.
For each additional request for a shop drawing revision from the Buyer, that is accepted by the Seller, the Buyer shall be invoiced an additional CAD$1,000.00 per revision per shop drawing.
FINISH SAMPLE SUBMITTALS
It is recommended that the Buyer provide colour codes or master finish samples with the Buyer’s request for quotation to the Seller for reference, especially for custom finish requests.
At the Seller’s sole discretion, one or more finish samples for each finish may be submitted by the Seller to the Buyer for selection and sign off.
It is recommended that the Buyer discuss any questions or comments with the Seller before signing off the finish sample. The Seller, at the Seller’s sole discretion, may reject any question, comment or mark up, without limitation, liability or penalty.
If a finish sample is submitted by the Seller to the Buyer, then the price of the Product quoted is inclusive of one finish sample per finish quoted, exclusive of delivery, shipping and handling.
For each additional request for a finish sample from the Buyer, that is accepted by the Seller, the Buyer shall be invoiced an additional CAD$250.00 per finish sample per finish.
PACKAGING
All prices quoted are inclusive of packaging.
Product sub-assemblies may be packed separately, at the Seller’s sole discretion. This may include, but not be limited to, levelers.
Products and/or sub-assemblies may be packaged individually or may be bulk packaged, at the Seller’s sole discretion.
New, previously used, overstock and/or oversized packaging materials may be used at the Seller’s sole discretion. This may include, but not be limited to bags, void filler, boxes and skids.
Boxes will have a box label.
STORAGE AND WAREHOUSING
Unless otherwise agreed to in writing by Seller, all prices quoted are inclusive of storage at Kalou Canada Inc.’s factory, Toronto, Ontario, Canada for up to thirty (30) days from date of packaging.
Unless otherwise agreed to in writing by Seller, on any Product not shipped within thirty (30) days from date of packaging, Seller may impose interest at the rate of two percent [2%] per month, compounded monthly.
Unless otherwise agreed to in writing by Seller, all Products will be shipped no later than one year from date of packaging.
DELIVERY, SHIPPING AND HANDLING
Seller’s production and delivery dates are estimates only, and subject to change. Seller is not liable for delays in delivery. A delayed delivery of an Order, partial or otherwise, does not entitle Buyer to cancel other deliveries.
All deliveries will be made “EXWORKS” from Kalou Canada Inc.’s factory, Toronto, Ontario, Canada. Risk of loss passes to the Buyer upon pick up of the Product by the carrier. The carrier shall not be deemed an agent of the Seller.
Prepaid and Charge shipping costs are Freight Company’s, or carrier’s, quoted estimates plus a minimum of 15% administration fee for, but not limited to, any shipping charge overruns, brokerage, customs charges and handling fees. To avoid this fee, Buyers may arrange their own shipping Collect or Pick Up.
It is the Buyer’s responsibility to ensure that all Products will fit through any access points such as doorways, stairways, hallways, elevators and around corners into the desired location.
Skids will have a skid label. A packing list will be available.
Shipping by rail is not advised.
All Products and Services are non-returnable, partial or otherwise, by Buyer, except when covered by the Limited Warranty.
FORCE MAJEURE
Seller is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond Seller’s reasonable control including, but not limited to, acts of God, natural or artificial disaster, fire, storm, flood, earthquake, epidemics, quarantine restrictions, acts of terrorism, riot, war, strike, delays in transportation, delay by carrier, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, labor shortages, material shortages, Product shortages, or inability to obtain labor, materials or Products through its regular sources, which shall be considered as an event of force majeure excusing Seller from performance and barring remedies for non-performance. In an event of force majeure condition, the Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Seller to any liability or penalty. Seller may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to the Buyer.
INSTALLATION
All prices quoted are exclusive of installation. Installation is not offered.
TAXES
Unless otherwise agreed to in writing by Seller, all prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including federal, state, provincial and local sales, excise and value added, goods and services taxes, and any other taxes. Buyer agrees to indemnify and hold Seller 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 Seller’s invoice.
PAYMENT
Payment shall be made by check or electronic fund transfer (all fees are borne by the Buyer). Where Seller has extended credit to Buyer, terms of payment shall be 50% deposit with Order, balance net thirty (30) days from date of invoice, without offset or deduction unless otherwise noted. Credit may be withdrawn, or the amount of credit may be changed, by Seller at any time.
On any past due invoice, Seller may impose interest at the rate of two percent [2%] per month, compounded monthly. If Buyer fails to make each payment when it is due, Seller reserves the right to change or withdraw credit and thereby suspend or cancel performance under any or all purchase orders or agreements in which Seller has extended credit to Buyer. In the event of default by Buyer, Seller shall be entitled to costs, fees, and expenses, including but not limited to recovery of attorney fees, court costs and fees, and collections costs.
Title and interest in the Products shall remain in Kalou Canada Inc. and the same shall not be pledged, mortgaged, hypothecated or otherwise charged to any bank, Trust Company, Corporation, firm, or individual until the total purchase price is fully paid for in cash. The receipt from the customer of the Promissory Note, cheque or other negotiable instrument shall not constitute payment until such instruments are actually paid.
PRODUCTS
The:
1) Images,
2) Dimensions,
3) Part Descriptions,
4) Material Descriptions,
5) Finishes, and
6) Construction,
found in, but not limited to, the Seller’s:
1) Catalogues,
2) Specifications,
3) Quotations,
4) Order Acknowledgements,
5) Shop Drawings,
6) Finish Samples, and
7) Prototypes
have been used to try to represent the Seller’s Products.
Seller’s Finish may vary between, but not limited to, electronic representations, printed representations, Buyer’s reference finish samples, Seller’s finish samples, Prototypes, and Products due to, but not limited to:
1) Variances in computer monitors, and the various settings for brightness and contrast that users may adjust their monitors to,
2) Variances and limitations in printing processes,
3) Variances between batches of stock, special order or custom finishes,
4) Variances in the base material or manufacturing process,
5) Variances in the shape or form of a Part,
6) Variances in the light colour, intensity or distribution on the finish
Seller’s Product may vary between electronic representations, printed representation, Prototypes and Products in, but not limited to:
1) Parts
2) Materials
3) Manufacturing Processes
4) Dimensions
5) Finishes
6) Assembly
Seller reserves the right to amend any Product catalogues, specifications, quotations and shop drawings without notice. Seller reserves the right to add, remove or modify parts during production.
TECHNICAL ASSISTANCE OR ADVICE
If technical assistance or advice are offered or given to Buyer, direct or indirect, such assistance or advice is given free of charge and only as an accommodation to Buyer. This assistance or advice, or Buyer’s use of such assistance or advice, shall not subject Seller to any liability whether it be contract, warranty (express or implied), tort (including negligence) or otherwise.