THESE TERMS AND CONDITIONS OF SALE PROVIDED BY wattco INC. TO CUSTOMER (“BUYER”) GOVERN THE SALE BY WATTCO OF ITS PRODUCTS (“PRODUCT(S)”) AND/OR SERVICES (“SERVICES”). NOTWITHSTANDING ANYTHING TO THE CONTRARY, CONFLICTING OR ADDITIONAL TERMS OR CONDITIONS WHICH APPEAR ON ANY PURCHASE ORDER OR OTHER DOCUMENT SUBMITIED BY BUYER, WILL NOT BECOME A PART OF THE CONTRACT OF SALE BETWEEN WATTCO AND BUYER UNLESS SPECIFICALLY AGREED TO IN WRITING BY AN AUTHORIZED WATTCO REPRESENTATIVE.
a) No order between Wattco Inc. (hereinafter described as “Wattco”) and any person or entity wishing to purchase any Products and/or Services of Wattco (hereinafter described as the “Buyer”) will be binding on Wattco unless and until it is accepted in writing by an authorized representative of Wattco.
b) The Buyer sending an order to Wattco is presumed to have renounced to its general terms and conditions of purchase and to any special condition, which has not been agreed upon in a signed writing by Wattco, including any stipulation to the same effects as the present subsection. Any acceptance of a Buyer’s order by Wattco is made upon the assumption that such a renunciation has been given by the Buyer. Such renunciation will be irrevocably presumed to have been given by the Buyer if the latter does not advise Wattco in a signed writing of its refusal to renounce to its general terms and conditions of purchase within twenty-four (24) hours following the reception of Wattco’s acceptance and in any event before Wattco has commenced to fill the Buyer’s order.
c) Notwithstanding the above, Buyer may not cancel or reschedule an order without Wattco’s prior written approval which shall be at Wattco’s sole discretion. It is also understood that Products purchased may be custom designed to the Buyer requirements and therefore cannot be returned or refunded.
d) Wattco will use commercial reasonable efforts to respect any specified delivery date, however, Wattco will not in any way be responsible or liable in any way whatsoever for failure or delay in supplying Products or in performing Services, including without limitation, for any indemnity, penalty, damage, diminution of price nor will any invoice be susceptible to modification, revision or cancellation by the Buyer due to any delay in delivery.
e) For standard products, Wattco reserves the right to make engineering changes as well as changes to parts and material provided that such changes do not materially affect the form, fit or function of the Product. For custom Products, unless Buyer notifies Wattco of it’s non-acceptance prior to Wattco’s commencement of work, Buyer is presumed to have accepted the specifications for modifications communicated by Wattco in previous discussions or written transmissions. If Buyer requests changes to previously confirmed designs, drawings or other aspects of the custom Product, Wattco reserves the right to refuse said changes and/or requote the Order. If work has already commenced on the original order, Buyer shall be responsible for all costs incurred up to the date of Wattco’s requote and cancellation charges may apply. No change will be accepted unless approved in writing by Wattco.
f) Wattco will presume an order is standard, unless Buyer has specifically identified its order as customized (detaining the non-standard specifications) in writing and before the order has been accepted.
g) Buyer warrants that it has the right to provide to Wattco any designs, drawings, instructions or other material furnished or given by Buyer (the “Buyer’s Material”), and that Wattco’s use of such Buyer’s Material in executing Buyer’s order shall not cause Wattco to infringe on or otherwise contribute to any infringement of, any patents, trade secrets, trade names, copyrights, logos, service marks or trademarks or other intellectual property right of a third party. Buyer agrees to indemnify Wattco and its affiliates from and against any and all costs, damages or awards (including legal fees) resulting from any actual or claimed infringement of a third party’s rights.
h) For large quantity orders, Wattco may deliver up to a maximum of 5% less (underage)
or more (overage) than the quantity listed on the purchase order.
a) Listed and quoted prices do not include any charges for installation, freight, handling, insurance, transportation, warehousing and storage of any Product. Any applicable tax, levy or duty (including sales and use tax, custom duties, licenses and fees, if applicable and howsoever designated) resulting from the sale and delivery of the Products sold, shall be payable by the Buyer upon demand. Prices are subject to change without advance notice. Wattco reserves the right to require payment in advance as a condition of shipment and/or performance of Services.
b) If any price has been determined on the basis of specifications or other data furnished or accepted by the Buyer, such price may be modified by Wattco in the event that such specification or data is subsequently modified, corrected or completed by the Buyer.
c) Unless otherwise indicated in a written quotation, all prices for Products to be delivered: (I) in Canada are in Canadian dollars and (II) outside of Canada are in U.S. dollars.
d)Invoices shall be prepaid, unless credit has been providing by Wattco at its sole discretion. Time is of the essence with respect to Buyer’s payment obligations hereunder and Wattco reserves the right, among other remedies, to terminate any order, to suspend deliveries of Products or performance of Services and/or to recall Products in transit and/or reclaim and repossess all Products which have been delivered to Buyer, which may be segregated or stored with Wattco for Buyer’s account or otherwise, if at any time in Wattco’s sole discretion: (a) Buyer’s creditworthiness is impaired; (b) Buyer has become insolvent or is unable to pay its debts as they become due; (c) Buyer files for, is subjected to, or commits any act of, bankruptcy or reorganization; or (d) in the event Buyer has failed to make a payment when due. Buyer is responsible to pay Wattco storage charges in the event Products are not timely picked up (by Buyer or its shipper) or are held by Wattco at the request of Buyer, however, Wattco is under no obligation to store Products beyond the scheduled shipping date. In the event that Buyer fails to make full payment on invoices in the manner and within the time specified by Wattco, Buyer shall be liable for all costs and expenses incurred by Wattco. In addition, interest on outstanding amounts due shall be equal to the greater of 18% per year or the current prime rate plus 5%, compounded monthly.
e) In the event it becomes necessary to file a lawsuit to collect the amounts set forth on any invoice or purchase order, Wattco shall be entitled to collect reasonable attorney’s fees and court costs.
f) The Buyer will be presumed to have accepted an invoice of Wattco and will not have the right to contest same unless it has done so in writing, within thirty (30) days following the invoice date.
g) Claims for shortages must be made within ten (10) days after receipt.
h) Deliveries on credit from an open account basis are only available for approved Buyers with a good credit rating, at Wattco’s sole discretion. Buyers with pending Wattco credit approval requests must fill out a credit application form for open account assessment. Orders shipped to credit approved Buyers must be paid in cash in advance, or by credit card.
i) The Buyer must place a production order of a minimum amount of $100.00 for standard Products per item. Stock orders must be of a minimum amount of $75.00 per combined order.
j) Wattco reserves the right to change the prices, discounts, terms of delivery, and designs without prior notice.
a) Wattco remains the sole owner of the Products sold until receipt of full payment of any amount due by the Buyer under this document and any related invoice or agreement. Notwithstanding the preceding paragraph, the risk of loss passes to Buyer when Products are made available to Buyer or to the carrier at F.O.B. point. Unless otherwise agreed by Wattco, all orders shall be FOB Wattco’s warehouse. Buyer is responsible to order any transportation or other insurance it determines that it may require. Products are recommended by Wattco to be insured by Buyer in an amount equal to at least the unpaid portion of Buyer’s total purchase price against all risks (subject to normal exclusions) from the moment risk of loss transfers to Buyer until Wattco has been paid in full. Unless otherwise specified by Wattco in writing, it is expressly understood that any technical advice furnished by Wattco with respect to the use of the Products is given without charge, and Wattco assumes no obligation or liability for the advice given or not given, or results obtained, all such advice being given are accepted at Buyer’s sole risk.
b) In case of any loss, damage, destruction or theft of any Product, in whole or in part, occurring after the moment mentioned in the preceding paragraph, Wattco will have no obligation to credit, replace or repair any such lost, damaged, destroyed or stolen Product or part thereof.
c) Notwithstanding the above, Wattco assumes no responsibility for delivery delays due to force majeure, fire, flooding, freezing, malicious mischief, riot, theft, or other reasons outside the direct control of Wattco including without limitation, delays in procuring supplies, labour troubles affecting Wattco, its suppliers or sub-contractors.
d) The signature of the carrier or of Buyer’s employee/agent on Wattco’s shipping documents shall be accepted as proof of delivery by Wattco.
e) Discounts and/or coupons cannot be combined with any other offers. Shipping discounts are valid for certain Products with limited weight and dimensions. Shipping discounts for new clients only. Please contact your sales representative for more information.
f) Wattco will notify Buyer when Product is ready for pickup. Buyer will have ten (10) days from such notification in which to pick up the Product or have them picked up; if the Product are not picked up on time, after the aforementioned period Buyer will bear the risk and costs of storage. If and as long as Buyer fails to perform its obligations after commencement of the pickup time, Wattco may deem the continuation of the delivery time to be suspended. With respect to the delivery time, the deadline will be the time at which Wattco notifies the Buyer that Products are ready for shipment.
Buyer shall be responsible for and pay any and all export and import licenses or permits necessary for shipment and/or delivery of Products, Services and/or technology. Buyer acknowledges that the Products, Services and/or any technology sold or otherwise transferred hereunder may be subject to governmental export and import control laws applicable to the purchase, sale, use, export, import or other transfer of such Products, Services and/or technology, in whole or in part (referred to as the “Transfer Laws”). Buyer warrants that it is familiar with the requirements and restrictions of all Transfer Laws and shall comply with such laws at all times. Buyer will indemnify Wattco and its affiliates against any and all costs and penalties arising out of or in connection with any direct or indirect violation of the Transfer Laws.
Buyer assumes all risk and responsibility related to the use of the Product and acknowledges the following: The Product is not designed for use in safety-critical applications or other applications where a failure of the Product could cause personal injury or death. Buyer acknowledges that Products sold by Wattco are not safety devices and should not be relied upon as safety devices. If Buyer intents to use Products to assist with safety or as a person or property damage prevention tool, it shall do so at its own risk and Buyer assumes all responsibility for any resulting damage, injury, or expense. The Product is not designed for use in military or aerospace applications or environments. Buyer acknowledges that Wattco is not liable for any damage or personal injury resulting from Buyer’s use of the Product and Buyer indemnifies and holds harmless Wattco, its shareholders, directors, employees and agents from and against any and all liabilities, expenses, losses, damages, claims, fines, penalties and costs (including all reasonable attorney’s fees) that Wattco may sustain or incur. Products may not be resold.
The present warranty replaces and cancels any other contractual, legal or other warranty, guarantee or representation whether expressed or implied and whether by statute, custom, usage of trade, course of dealing or otherwise, and covers only what is herein specifically stated. More particularly, it does not include any implied or other warranty as to merchantability, performance or fitness for a particular purpose.
REGARDING PRODUCTS, BUYER ACKNOWLEDGES THAT THE PRODUCTS ARE SOLD “AS IS” AND EXCEPT AS SPECIFICALLY OUTLINED BELOW, WATTCO MAKES NO WARRANTIES OR GUARANTEES WHATSOEVER, EXPRESS OR IMPLIED, REGARDING ANY PRODUCT, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY, FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS OR WARRANTIES ARISING UNDER COURSE OF DEALING OR USAGE OF TRADE.
Subject to the restrictions and exclusive remedy below, Wattco warrants that any Products sold will be free from defects in material and workmanship for a period of one (1) year from the date of shipment by Wattco. This warranty is not transferable. Buyer agrees to inspect for damage, defects or non-conformity promptly upon receipt of the Products and any claim shall be deemed waived unless made in writing and received by Wattco within fourteen (14) days of Buyer’s receipt of the Products to which such claim relates.
The warranty obligations of Wattco are strictly limited to the repair or replacement of any defective equipment or part thereof as specified above, and in no event and under no circumstances shall the liability of Wattco exceed the unit price paid by the buyer for any defective Product or part thereof. NOTWITHSTANDING ANY SUGGESTION TO THE CONTRARY HEREIN OR OTHERWISE UNDER APPLICABLE LAW, IN NO EVENT WILL WATTCO OR ITS AFFILIATES BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR OTHER DAMAGES UNDER OR IN CONNECTION WITH AN ORDER, THESE TERMS AND CONDITIONS, OR THE PRODUCTS AND/OR SERVICES (INCLUDING WITHOUT LIMITATION, LOST BUSINESS, REVENUES OR PROFITS; DAMAGES FOR EQUIPMENT DOWNTIME; FAILURE TO ACHIEVE COST SAVINGS; LOST FILES, IMAGES OR DATA; INTERRUPTION OF BUSINESS; ECONOMIC LOSS; LOSS OF USE OR LOST PRODUCTIVITY; COST OF PROCUREMENT OF SUBSTITUTE GOODS; OVERHEAD EXPENSES; OR DAMAGES TO REPUTATION OR GOODWILL), EVEN IF WATTCO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, IRRESPECTIVE OF THE NATURE OF THE CLAIM ASSERTED, INCLUDING WITHOUT LIMITATION, IF FOR BREACH OF CONTRACT, BREACH OF WARRANTY, INTELLECTUAL PROPERTY INFRINGMENT, TORT OR STRICT LIABILITY, AND EVEN IF SUCH DAMAGES RESULT FROM NEGLIGENCE OR OTHER FAULT. If any court having competent jurisdiction finally holds that this limitation of liability, or any warranties and/or exclusive remedies outlined are void or unenforceable, Wattco’s total liability for any claim shall be limited to the aggregate amount paid by Buyer for the Products and/or Services giving rise to the claim. Buyer is responsible for mitigating all damages it may incur. Repair or replacement remedies, at Wattco’s sole discretion, constitute Buyer’s exclusive remedies and Wattco’s sole obligation if Products are defective in material or workmanship at the time of delivery.
Notwithstanding the above, the present warranty does not cover:
Any faulty, improper or negligent installation, operation, storage, transport, maintenance or use of any Products or part thereof or any improper manipulation, installation or use which is not in conformity with instructions received by Wattco, local regulations or accepted trade practices. Misuse of Product includes use beyond the limitations or intended purpose of the Product.
Products that were either installed or connected to/with: (i) control panels that were not supplied by Wattco; or (ii) other third-party products in a manner which has any influence on the function or performance of the Products.
Normal wear and tear or damage due to: (i) weather related conditions; or (ii) the Product being submerged in water (or prolonged periods of dampness or condensation) when such submergence was not pre-approved in writing by Wattco.
Anything resulting from “force majeure” or other conditions beyond the control of Wattco.
Repairs, modifications or replacement which have not been exclusively made or authorized in writing by Wattco.
Any Product from which Wattco’s serial number has been removed or appears to have been tampered with.
Wattco cannot guarantee any of its electric immersion heaters against failures due to sheath corrosion, should a failure be caused by exceptional operating conditions that are beyond Wattco’s control. All facts and recommendations outlined in the Wattco catalogue or any other literature published by Wattco are based on the company’s own research and that of other sources and is considered accurate. Wattco cannot foresee all of the conditions under which the published information and Wattco Products or other manufacturers’ products combined with Wattco Products will be used. Wattco is not responsible for any results obtained from the application this information or for the safety and suitability of our products, whether or not they are combined with other products. The Buyer is responsible for selecting the proper sheath material to the best of his/her knowledge of the chemical composition of corrosive solutions, features of materials in these solutions, and process controls.
The Products replaced or repaired by Wattco in accordance with the present warranty are themselves only warranted for the remaining term of the original warranty.
As consideration for the warranty obligations assumed by Wattco, the Buyer undertakes and agrees:
To advise Wattco in writing of the existence of any defect as soon as possible after discovery of same (and within the warranty period) and to furnish Wattco with all details of such defect.
To permit Wattco to have free access at all reasonable times to any such defective Product or part thereof.
That all defective Products covered by the foregoing warranty shall, unless otherwise directed by Wattco, be returned to Wattco and must be shipped prepaid and the packaging must indicate a returned materials authorization number issued by Wattco on the outside. All such defective Products covered by this warranty in accordance with the foregoing provisions shall be repaired or replaced by Wattco at Wattco’s cost and returned by Wattco to Buyer F.O.B. original point of delivery. No returned Products or part thereof will be accepted by Wattco without prior authorization by Wattco and must furthermore be identified by a returned materials authorization number issued by Wattco.
That Wattco is committed to research and development into new Products and therefore has the right to make changes to specifications, designs, and materials without prior notice and without incurring any obligations or liabilities.
REGARDING SERVICES, WATTCO WARRANTS THAT THE SERVICES PROVIDED ARE AN ACCOMODATION OR CONVENIENCE TO THE BUYER AND WILL BE PROVIDED IN A COMPETENT MANNER CONSISTENT WITH LOCAL STANDARDS, AND IN COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS. THIS IS THE SOLE AND EXCLUSIVE WARRANTY MADE BY WATTCO REGARDING THE SERVICES, AND ALL OTHER WARRANTIES AND CONDITIONS EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED. IN THE EVENT OF WATTCO’S BREACH OF WARRANTY, BUYER WILL PROMPTLY NOTIFY WATTCO IN WRITING (WITHIN 10 DAYS) AND BUYER’S SOLE REMEDY AND WATTCO’S SOLE OBLIGATION, WILL BE, UPON CONFIRMATION OF THE BREACH, TO RE-PERFORM THE DEFECTIVE SERVICE AT NO ADDITIONAL EXPENSE.Without limitation of Buyer’s other indemnification obligations hereunder, Buyer shall defend, indemnify and hold harmless (collectively, “Indemnify”) Wattco and its affiliates from and against any and all claims (including without limitation, third party claims), damages, losses, actions, liabilities and costs (including, without limitation, reasonable legal fees and expenses) (collectively, “Costs”) incurred or in any way related to: (i) Buyer ‘s actual or alleged breach of its obligations at law or under these Terms and Conditions; (ii) Buyer’s (or its employees’, agents’ or contractors’) purchase or use of the Products and/or the Services; (iii) Buyer’s relationships and arrangements with third parties; (iv) Buyer’s business activities and operations; and (v) the actual or alleged acts or omissions of Buyer, its employees, agents, customers, business partners, or contractors directly or indirectly relating to the Products or Services.
a) The Buyer recognizes and admits that any invention, patent, trademark, trade name, industrial design, copyrightable document or object as well as any know-how or trade secret including, but without limitation, any engineering specification or document (hereinafter described as the “Industrial Property”) revealed or furnished by Wattco to the Buyer, its employees or agents used by Wattco in association with its products are the exclusive property of Wattco.
b) The Buyer will hold in confidence any Industrial Property except that which now is or in the future becomes public knowledge through no fault of the Buyer and/or any person under its control and more particularly, the Buyer will take all necessary measures to maintain the confidentiality of such Industrial Property.
a) This document and any related agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada and the applicable laws therein. The courts of Ontario shall have jurisdiction in any dispute related to Buyer’s purchase of Product from Wattco.
b) Wattco may assign all or any part of its right and/or obligations hereunder to any Wattco affiliate or authorized distributor without Buyer’s consent. Otherwise neither party shall delegate any obligations hereunder nor assign any interest or rights without the written consent of the other.
c) This document and any related agreement sets forth the entire agreement and understanding between the parties with respect to the subject matter hereof and merges and supersedes all prior discussions, representations, understandings and agreements, whether oral or in writing between the parties with respect to the said subject matter, including any term or condition appearing on the Buyer’s purchase orders. This document and any related agreement may be altered, modified or amended only by a written document signed by both parties.
d) Any inconsistency which may exist between any terms and conditions of this document and that of any related agreement shall be resolved in favour of the terms and conditions of this document unless such related agreement contains a specific mention that such terms and conditions are not applicable.
e) If any term or provision of this document or any related agreement or the application thereof to any person or circumstance shall, to any extent, be decreed by a Court of competent jurisdiction to be invalid or unenforceable, the remainder of this document or any related Agreement, or the application of such term or provision to other persons or circumstances, shall not be affected thereby.
f) Wattco might from time to time wish to promote products and services by using Buyer’s references. In this respect, Buyer agree to Wattco’s use of the Buyer’s company name and/or logo for promotional efforts on the www.wattco.com website. The Buyer also hereby gives permission to Wattco’s use of testimonials on its website for the purposes of generating future business.
g) The parties hereto expressly requested that this document be drafted in English. Les parties aux présentes confirment leur volonté que cette convention de même que tous les documents, y compris tous avis s’y rattachant, soient rédigés en anglais seulement.
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