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Offer of Sale
The item described in this document is hereby offered for sale at prices to be established by Brantford Hydraulics Incorporated, and there authorized distributors. This offer and its acceptance by any customer (“Buyer”) shall be governed by all of the following terms and conditions. Buyer’s order for this item described in this document, when communicated to Brantford Hydraulics Incorporated, or an authorized distributor “Seller”) verbally or in writing shall constitute acceptance of this offer.
1. Terms and Conditions or Sale: All descriptions, quotations, proposals, offers, acknowledgments, acceptances and sales of Seller’s products are subject to and shall be governed exclusively by the terms and conditions stated herein. Buyer’s acceptance of any offer to sell is limited to these terms and conditions. Any terms or conditions in addition to, or inconsistent with those stated herein, proposed by Buyer in any acceptance of an offer by Seller, are hereby objected to. No such additional, different or inconsistent terms and conditions shall become part of the contract between Buyer and Seller unless expressly accepted in writing by Seller. Seller’s acceptance of any offer to purchase by Buyer is expressly conditional upon Buyer’s assent to all the terms and conditions stated herein, including any terms in addition to, or inconsistent with those contained in Buyer’s offer. Acceptance of Seller’s product shall in all events constitute such assent.
2. Payment: Payment shall be made by Buyer at the date of delivery or after a qualification of credit, terms net 30 days from the date of delivery of the item purchased hereunder. Amounts not timely paid shall bear interest at the rate of 2% for each month or a portion thereof that Buyer is late in making payment. Any claims by Buyer for omissions or shortages in a shipment shall be waived unless Seller receives notice thereof within 30 days after Buyer’s receipt of the shipment.
3. Delivery: Unless otherwise provided on the face hereof, delivery shall be made F.O.B. Seller’s plant. Regardless of the method of delivery, however, risk of loss shall pass to Buyer upon Seller’s delivery to a carrier. Any delivery dates shown are approximate only and Seller shall have no liability for any delays in delivery.
4. Warranty: Seller warrants that any manufactured item by the Seller shall be free from defects in material or workmanship for a period of 12 months from date of shipment to the Buyer. Any items supplied by the Seller and not-manufactured by the Seller, shall be warranted by there respective Seller’s warranties. Futhermore, any defective workmanship Service Department related shall be corrected by Seller, with incurred labour, free of charge, provided Seller is made aware of defective workmanship within three (3) months or five-hundred (500) hours of operation. THIS WARRANTY COMPRISES THE SOLE AND ENTIRE WARRANTY PERTAINING TO ITEMS PROVIDED HEREUNDER. SELLER MAKES NO OTHER WARRANTY, GUARANTEE, OR REPRESENTATION OF ANY KIND WHATSOEVER. ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO, MERCHANTABILITY AND FITNESS FOR PURPOSE, WHETHER EXPRESS, IMPLIED, OR ARISING BY OPERATION OF LAW, TRADE USAGE, OR COURSE OF DEALING ARE HEREBY DISCLAIMED.
NOTWITHSTANDING THE FOREGOING, THERE ARE NO WARRANTIES WHATSOEVER ON ITEMS BUILT OR ACQUIRED WHOLLY OR PARTIALLY, TO BUYER’S DESIGNS OR SPECIFICATIONS.
5. Limitation of Remedy: SELLER’S LIABILITY ARISING FROM OR IN ANY WAY CONNECTED WITH THE ITEMS SOLD, REPAIRED OR THIS CONTRACT SHALL BE LIMITED EXCLUSIVELY TO REPAIR OR CORRECTIVE ACTION OR REPLACEMENT OF THE ITEMS SOLD OR REFUND OF THE PURCHASE PRICE PAID BY THE BUYER, AT SELLER’S SOLE OPTION. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDED BUT NOT LIMITED TO LOST PROFITS ARISING FROM OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR ITEMS SOLD HEREUNDER, EXPRESS OR IMPLIED WARRANTY, OR IN TORT, INCLUDING WITHOUT LIMITATION, NEGLIGENCE, FAILURE TO WARN OR STRICT LIABILITY. THE BUYER WILL MAKE AVAILABLE, IN ORDER TO COMMENCE CORRECTIVE ACTION, A REASONABLE AND AGREEABLE TIME OF COMMENCEMENT BY BOTH THE BUYER AND THE SELLER. FURTHERMORE, THE BUYER MUST PROVIDE CLEAR AND SAFE ACCESS TO MACHINERY AND/OR COMPONENTS FOR THE PURPOSE OF THE CORRECTIVE ACTION.
6. Change, Reschedules and Cancellations: Buyer may request to modify the designs or specifications for the items sold hereunder as well as the quantities and delivery dates thereof, or may request to cancel all or part of this order, however, no such requested modification or cancellation shall become part of the contract between Buyer and Seller unless acceptance by Seller in a written amendment to this agreement. Acceptance of any such requested modification or cancellation shall be at the Seller’s discretion, and shall be upon such terms and conditions as Seller may require.
8. Taxes: Unless otherwise indicated on the face hereof, all prices and charges are exclusive of excise, sales, use, property, occupational or like taxes which may be imposed by any taxing authority upon the manufacture, sale or delivery of the items sold hereunder. If any such tax must be paid by Seller or if Seller is liable for the collection of such tax, the amount thereof shall be in addition to the amounts for the items sold. Buyer agrees to pay all such taxes or to reimburse Seller therefore upon receipt of its invoice. If Buyer claims written exemption from any sales, use or other tax imposed by any taxing authority, Buyer shall save Seller harmless from and against any such tax, together with any interest or penalties thereon which may be assessed if the items are held to be taxable.
9. Entire Agreement/Governing Law: The terms and conditions set forth herein, together with any amendments, modifications and any different terms or conditions expressly accepted by Seller in writing, shall constitute the entire Agreement concerning the items sold, and there are no oral or other representations or agreements which pertain thereto. This Agreement shall be governed in all aspects by the law of the Province of Ontario. No actions arising out of the sale of the items sold hereunder or this Agreement may be brought by either party more than two (2) years after the cause of the accrues.
