Terms & Conditions
TERMS AND CONDITIONS OF SALE APPLICABILITY. These Global Terms and Conditions of Sale (“Terms”) apply to the purchase of products and ancillary services (collectively the “Products”) by Xtreme Wear Parts Inc (“XWParts”) and the buyer (“Buyer”), each of which is identified in the accompanying quotation, credit application, proposal, order acknowledgement, or invoice (the “Sales Confirmation”). These Terms and the Sales Confirmation comprise the entire agreement between the parties (collectively, the “Agreement”). Buyer accepts these Terms by signing and returning XWParts quotation, by sending a purchase order in response to the quotation, or by Buyer’s instructions to XWParts to ship the Product. No terms, conditions or warranties other than those identified in the quotation and no agreement or understanding, oral or written, in any way purporting to modify the terms and conditions whether contained in Buyer’s purchase order or shipping release forms, or elsewhere, shall be binding on XWParts unless hereafter made in writing and signed by XWParts authorized representative. Buyer is hereby notified of XWParts express rejection of any terms inconsistent with this Agreement or to any other terms proposed by Buyer in accepting XWParts quotation. Neither XWParts subsequent lack of objection to any terms, nor the delivery of the products or services, shall constitute an agreement by XWParts to any terms.
CANCELLATION. CANCELLATION. Cancellation or modifications of all or part of any order are subject to XWParts prior written consent in each instance. If cancellation or modification is allowed, Buyer agrees to pay to XWParts all expenses incurred and damage sustained by XWParts on account of the cancellation or modification, plus a reasonable profit.
PRICE. Prices on accepted orders are firm for a period of 90 days from date of acceptance. All stated prices are exclusive of any taxes, fees, duties, and levies, however designated or imposed, including but not limited to value- added and withholding taxes that are levied or based upon the amounts paid under this Agreement (collectively, “Taxes”). Any Taxes related to the Products purchased pursuant to this Agreement are the responsibility of Buyer (excluding taxes based on XWParts net income), unless Buyer presents an exemption certificate acceptable to XWParts and the applicable taxing authorities. If possible, XWParts will bill Taxes as a separate item on the invoice presented to Buyer. If any exemption certificate presented by Buyer is held to be invalid, then Buyer will pay XWParts the amount of the Tax and any penalties and interest related thereto
PAYMENT. Unless otherwise set forth in the Sales Confirmation, Buyer will pay all invoiced amounts within thirty (30) days following the date of XWParts invoice. Unpaid amounts will accrue interest at a rate equal to the lesser of one and one-half percent (1.5%) per month and the maximum rate permitted by applicable law, from due date until paid, plus XWParts reasonable costs of collection. XWParts reserves all other rights granted to a XWParts under the Uniform Commercial Code (“UCC”) for Buyer’s failure to pay for the Products or any other breach by Buyer of these Terms. In addition to all other remedies available to XWParts (which XWParts does not waive by the exercise of any rights hereunder), XWParts may suspend the delivery of any Products if Buyer fails to pay any amounts when due and the failure continues for five (5) days following Buyer’s receipt of notice thereof. Buyer may not withhold payment of any amounts due and payable as a set-off of any claim or dispute with XWParts, regardless of whether relating to XWParts breach, bankruptcy, or otherwise.
(a) XWParts will deliver the Products within a reasonable time after receiving Buyer’s purchase order, subject to their availability. The delivery date provided by XWParts for the Products is only an estimate and is based upon prompt receipt of all necessary information from Buyer. If Buyer causes XWParts to delay shipment or completion of the Products, XWParts will be entitled to any and all extra costs and expenses resulting from the delay. XWParts will not be liable for any delays, loss, or damage in transit, and failure to deliver within the time estimated will not be a material breach of contract on XWParts part.
(b) Unless otherwise agreed in writing by the parties, XWParts will deliver the Products, at the location specified in the Sales Confirmation (the “Delivery Location”), using XWParts standard methods for packaging and shipping same. Buyer will take delivery of the Products within three (3) days of XWParts notice that the Products have been delivered to the Delivery Location. If Buyer fails to take delivery of the Products within this three (3) day period Buyer will pay XWParts for the Products and all storage expenses incurred by XWParts. XWParts may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer will pay for the units shipped whether the shipment is in whole or partial fulfillment of Buyer’s purchase order. Buyer is responsible for obtaining any import licenses and other consents required for a Product shipment at its own expense, and will provide the licenses and consents to the XWParts before shipment.
(c) The quantity of any installment of the Products, as recorded by XWParts on the dispatch from XWParts place of business, is conclusive evidence of the quantity received by Buyer upon delivery, unless Buyer provides conclusive evidence to the contrary. XWParts will not be liable for any non-delivery of the Products to the Delivery Location, unless Buyer gives written notice to XWParts of the non-delivery within five (5) days following the date that Buyer would, in the ordinary course of business, have received the Products. XWParts liability for any non-delivery of the Products will be limited to replacing the Products within a reasonable time or adjusting the invoice for the Products to reflect the actual quantity delivered.
TITLE; RISK OF LOSS.
(a) Risk of loss or damage passes to Buyer passes upon delivery to the carrier. If Buyer fails to accept delivery of any of the Products on the date set forth in XWParts notice that XWParts has delivered the Products to the Delivery Location, or if XWParts is unable to deliver the Products to the Delivery Location on the date because Buyer has failed to provide appropriate instructions, documents, licenses, or authorizations, then: (i) risk of loss to the Products will pass to Buyer; (ii) the Products will be deemed to have been delivered to Buyer; and (iii) XWParts, at its option, may store the Products until Buyer takes possession of them, at which time Buyer will be liable for all costs and expenses resulting from the failure (including but not limited to the cost of storage and insurance).
(b) Title passes to Buyer upon Buyer’s payment in full for the Products.
INSPECTION; REJECTION OF PRODUCTS.
(a) As used in this Section 7, “Nonconforming Products” means only the following: (i) the items shipped are different from those identified in Buyer’s purchase order; or (ii) the labels or packaging of the items incorrectly identifies them. Buyer will inspect the Products within five (5) days following receipt thereof (the “Inspection Period”). The Products will be deemed accepted at the end of the Inspection Period unless Buyer notifies XWParts in writing of any Nonconforming Products and furnishes XWParts with written evidence or other documentation reasonable required by XWParts.
(b) If Buyer timely and properly notifies XWParts of any Nonconforming Products, then XWParts will, in its sole discretion, (i) replace the Nonconforming Products with conforming Products or (ii) credit or refund the purchase price for the Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer. At XWParts request, Buyer will dispose of the Nonconforming Products or return the Nonconforming Products to XWParts at XWParts expense. Upon receipt of the Nonconforming Products, XWParts will promptly refund the monies owed or ship the replacement Products to the Delivery Location at XWParts expense, with XWParts retaining the risk of loss until delivery
(c) Buyer acknowledges and agrees that the remedies set forth in this Section 7 are Buyer’s exclusive remedies for the delivery of Nonconforming Products, and except as set forth in this Section 7, Buyer has no right to return the Products to XWParts without XWParts written authorization.
(a) XWParts warrants to Buyer that the Products will be free from defects in material and workmanship for a period of six (6) months following the date of delivery to the Delivery Location (the “Warranty Period”). Notwithstanding the foregoing, the Warranty Period for consumable Products will in no event exceed recommended replacement intervals set forth in the published specifications and instructions provided by XWParts or its suppliers or subcontractors Instructions (“Instructions”). If, prior to the expiration of the Warranty Period, Buyer informs XWParts in writing of any breach of this limited warranty, then XWParts may repair or replace the Products that gave rise to the breach or, in XWParts sole and exclusive discretion, refund the amounts that Buyer paid for the Products.
(b) The foregoing limited warranties do not apply to (i) any defect in Products not manufactured by XWParts; and (ii) any Products manufactured according to Buyer’s specifications.
(c) Buyer will bear the costs of access, de-installation, re-installation and transportation of the Products to XWParts and back to Buyer. Any repair or replacement pursuant to this limited warranty will not extend the Warranty Period. XWParts does not warrant the Products, or any repaired or replacement parts, against normal wear and tear or corrosion. This limited warranty and remedy are expressly conditioned upon: (i) Buyer’s payment of the purchase price in full, (ii) Buyer giving written notice of the defect, reasonably described, to XWParts within ten (10) days of the time when Buyer discovers or ought to have discovered the defect, (iii) the storage, installation, operation, use, and maintenance of the Products in compliance with the Instructions, (iv) the existence of proper records of Buyer’s operation and maintenance of the Products during the Warranty Period, (v) Buyer providing XWParts with a reasonable opportunity to examine the Products and the aforementioned records, and (vi) the absence of any unauthorized modification or repair of the Products, including without limitation the removal or alternation of any serial numbers or warranty date decals.
(d) Before any test may be used to evaluate the Products, Buyer will: (i) provide XWParts with reasonable written notification of the test, (ii) allow XWParts to be present during the test, and (iii) receive XWParts consent to the conditions of the test, which consent will not be unreasonably withheld. If a test is performed on the Products, and XWParts has not consented to the conditions of the test, then this limited warranty will be void.
(e) THE REMEDIES SET FORTH IN THIS SECTION 8 ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY FAILURE OF XWPARTS TO COMPLY WITH ITS OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION 8. XWPARTS MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, OF ANY KIND, AND XWPARTS DISCLAIMS ALL OTHER WARRANTIES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
LIMITATIONS OF LIABILITY.
(a) IN NO EVENT WILL XWPARTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF USE OR UNDER- UTILIZATION OF LABOR OR FACILITIES, LOSS OF REVENUE OR ANTICIPATED PROFITS, LOST DATA, AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EVEN IF XWPARTS HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES.
(b) EXCEPT FOR DEATH OR BODILY INJURY RESULTING FROM XWPARTS NEGLIGENCE OR WILLFUL MISCONDUCT, XWPARTS TOTAL LIABILITY FOR ALL CLAIMS ARISING OUT OF, OR RELATING TO, THE GOODS WILL BE LIMITED TO GENERAL MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL PURCHASE PRICE FOR THE GOODS GIVING RISE TO THE CLAIM.
CHANGES. XWParts reserves the right to alter, modify, or redesign its products without any obligation to replace previous shipments to Buyer.
(a) Except as provided in Section 13(b), the sale of the Products will not confer upon Buyer any license, express or implied, under any patents, trademarks, trade names, or other proprietary rights owned or controlled by XWParts, its subsidiaries, affiliates, or suppliers; it being specifically understood and agreed that all the rights are reserved to XWParts, its subsidiaries, affiliates, or suppliers. Without limiting the foregoing, Buyer will not, without XWParts prior written consent, use any trademark or trade name of XWParts in connection with any the Products, other than with respect to the resale of the Products pre-marked or packaged by or on behalf of XWParts.
TERMINATION. In addition to any other remedies that XWParts may have, XWParts may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and the failure continues for five (5) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
CONFIDENTIALITY. All non-public, confidential, or proprietary information of XWParts, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, that XWParts discloses to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and regardless of whether marked, designated, or otherwise identified as “confidential,” in connection with the Agreement is confidential, solely for the use of performing the Agreement, and may not be disclosed or copied unless authorized in advance by XWParts in writing. Upon XWParts request, Buyer will promptly return all documents and other materials received from XWParts. XWParts will be entitled to injunctive relief for any violation of this Section 15, without having to post bond or establish the insufficiency of a remedy at law. This Section 15 does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by XWParts on a non-confidential basis from a third party.
FORCE MAJEURE. XWParts will not be liable for any failures or delays caused by strikes, differences with workers, or any causes beyond the reasonable control of XWParts, including but not limited to fires, floods, accidents, action of any governmental authority, war, insurrection or riots, or shortages of labor, energy, raw materials, production facilities, or transportation. Where delays or failures are caused by labor difficulties, XWParts will not be obligated to seek or obtain any settlement that, in XWParts sole judgment, is not in XWParts best interest.
COMPLIANCE. Each party will comply with all applicable laws, regulations, and ordinances, and Buyer will comply with the export and import laws and regulations in effect as of the date of shipment of the Products of any country involved in the transactions contemplated by the Agreement.
GOVERNING LAW; VENUE; DISPUTE RESOLUTION.
(a) All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the Province of Alberta without giving effect to any choice or conflict of law provision or rule (whether of the Province of Alberta or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Alberta. Any legal suit, action or proceeding arising out of or relating to these Terms will be instituted in the federal or Provincal courts located in the City of Edmonton, Alberta. Each party irrevocably submits to the exclusive jurisdiction of the courts in any the suit, action or proceeding.
(b) XWParts will have the sole and exclusive right to determine whether any dispute, controversy or claim arising out of or relating to the Agreement, or the breach thereof, will be submitted to a court of law or arbitrated. The venue for any the arbitration will be in Edmonton, Alberta. The arbitrator’s award may be confirmed and reduced to judgment in any court of competent jurisdiction. In the event the matter is submitted to a court, XWParts and Buyer hereby agree to waive their right to trial by jury and covenant that neither of them will request trial by jury in any the litigation.
CHOICE OF LANGUAGE. It is by the express intention of the parties hereto that the present Agreement and all its related documents be drafted in English.
SURVIVAL. In addition to any other term whose context may so require, the terms contained in Sections 1, 4, 6, 7, 8, 9, 10, 11, 15, 18, 19, 20, and 21 will survive any cancellation of the purchase order.
MISCELLANEOUS. Buyer acknowledges that is has not been induced to purchase any the Products from XWParts by any representation or warranty not expressly set forth in this Agreement. These Terms and the Sales Confirmation constitute the entire agreement of the parties and supersede all existing agreements and all other oral or written communications between them concerning its subject matter. None of the Terms may be added to, modified, superseded, or otherwise altered, except by a written document signed by an authorized representative of XWParts that specifically references these Terms and states that it modifies them. If there is a conflict between the provisions of the Sales Confirmation and these Terms, then the terms of the Sales Confirmation will govern. No waiver by XWParts of any of the provisions of these Terms is effective unless explicitly set forth in writing that specifically references these Terms and is signed by XWParts. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The Section headings contained in these Terms are for convenience only and will not affect the interpretation of any provision. If any provision of this Agreement is held to be prohibited or unenforceable, the provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Buyer will not assign any quotation or accepted order for the Products, in whole or in part, without XWParts prior written consent.