Terms of Use & Terms of Sale
TDL CANADA INC.
TERMS AND CONDITIONS OF SALE
Applicability.
These terms and conditions of sale (these “Terms”) are the only terms that govern the sale of goods (“Goods”) by TDL Canada Inc. (“Seller”) to the buyer named in a purchase order, sales order, quotation, confirmation of sale or invoice, to which these Terms apply (“Buyer”, and together with Seller, each a “Party,” and collectively, the “Parties”). Notwithstanding anything herein to the contrary, if a written contract signed by both Parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. Buyer’s purchase of Goods shall be deemed to be Buyer’s agreement to abide by these Terms. If an individual is agreeing to these Terms on behalf of a company or other legal entity, such individual represents that such individual has the authority to bind such entity to these Terms.
The accompanying purchase order, sales order, quotation, confirmation of sale or invoice, to which these Terms apply (the “Sales Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the Parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted documentation to Seller referencing such terms. Fulfilment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
Payment Terms. Buyer agrees to pay the purchase price for Goods set forth in a Sales Confirmation (the “Price”), without any deduction, set-off, or counterclaim. Seller shall invoice Buyer in accordance with the payment schedule set forth in the applicable Sales Confirmation. Payment terms for all invoiced amounts shall be as set forth in an applicable Sales Confirmation, and absent same shall be thirty (30) days net of Buyer’s receipt of Seller’s invoice. Should payment not be made to Seller when due, such invoiced amount shall bear interest at the rate equal to the lesser of one percent (1%) per month or the maximum rate permitted by law until payment in full is made. Any such interest shall be in addition to (and not in lieu of) other remedies for default available to Seller. The charging of such interest shall not be deemed to be an agreement by Seller to grant any extension of time in the terms of payment.
Taxes. The amount of any sales, excise or other taxes and governmental charges, if any, applicable to the sale of Goods shall be added to the Price for Goods set forth in a Sales Confirmation and shall be paid by Buyer, unless Buyer provides Seller with an exemption certificate acceptable to the taxing authorities and/or unless otherwise agreed to by the Parties. Any taxes which Seller may be required to pay or collect under any existing or future law, upon or with respect to the sale, purchase, delivery, storage, processing, use or consumption of Goods, including taxes upon or measured by the receipts from the sale thereof, shall be for the account of Buyer, who shall promptly pay the amount thereof to Seller upon demand.
Title; Delivery.
Goods shall be delivered on the date as determined by Seller and Buyer set forth in the applicable Sales Confirmation (“Delivery Date(s)”). All Goods shall be shipped to the address specified in the Sales Confirmation or otherwise agreed to by the Parties (“Delivery Location”). All Prices are Ex Works Seller’s applicable warehouse location (Incoterms® 2020), unless otherwise agreed to between Buyer and Seller, in writing. Risk of loss shall transfer to the Buyer upon tender of Goods to Buyer at the Delivery Location. Claims for Goods damaged or lost in transit shall be made by Buyer to the carrier, as Seller’s responsibility ceases upon tender of Goods to Buyer at the Delivery Location.
Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for Goods shipped whether such shipment is in whole or partial fulfillment of the applicable Sales Confirmation.
Buyer hereby grants to Seller a security interest in such Goods at any time delivered by Seller to Buyer, or in the possession of Seller, to the extent not fully paid for by Buyer, and in all replacements and substitutions thereof, all additions and accessories thereto, and all proceeds thereof, to secure payment of the applicable Price of all Goods, any collection costs, and any other debts owing to Seller by Buyer, and interest thereon. The security interest granted under this provision constitutes a purchase money security interest under applicable personal property security legislation.
Quantity; Non-Delivery.
If Seller delivers to Buyer a quantity of Goods of up to five percent (5%) more or less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods at the Price set forth in the Sales Confirmation adjusted pro rata.
Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within seven (7) days of the date when Goods would in the ordinary course of events have been received.
Any liability of Seller for non-delivery of Goods shall be limited to replacing Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
Buyer acknowledges and agrees that the remedies set forth in this Section 5 are Buyer’s exclusive remedies for the non-delivery of Goods.
Inspection and Rejection of Non-Conforming Goods.
Buyer shall inspect Goods within three (3) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted Goods unless it notifies Seller in writing of any Non-conforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Non-Conforming Goods” means only the following: (i) Goods shipped are different than identified in the applicable Sales Confirmation, or (ii) Goods’ label or packaging incorrectly identifies the contents.
If Buyer timely notifies Seller of any Non-Conforming Goods, Seller shall, in its sole discretion, (i) replace such Non-Conforming Goods with conforming Goods, or (ii) credit or refund the Price for such Non-Conforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Non-Conforming Goods to the location directed by Seller. If Seller exercises its option to replace Non-Conforming Goods, Seller shall, after receiving Buyer’s shipment of Non-Conforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
Buyer acknowledges and agrees that the remedies set forth in this Section 6 are Buyer’s exclusive remedies in respect of Non-Conforming Goods.
Warranties; Indemnities.
Buyer acknowledges that Seller is not the manufacturer of Goods. Warranties for Goods, if any, are provided by the manufacturer of Goods. SELLER EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND COVENANTS, EITHER EXPRESS, IMPLIED, OR STATUTORY WITH RESPECT TO ANY GOODS, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. All Information is provided to the Buyer “as is”. To the extent authorized, Seller will pass through to Buyer any transferable Goods warranties, indemnities, and remedies provided to Seller by the manufacturer or vendor of Goods, including any warranties and indemnities for intellectual property infringement. Buyer’s, its affiliates, and their respective customers’ sole and exclusive remedy relating to Goods will be the remedy afforded by the applicable manufacturer or vendor of such Goods to such parties.
SELLER IS NOT RESPONSIBLE FOR AND HAS NO DUTY TO DEFEND, INDEMNIFY, OR HOLD HARMLESS BUYER, ITS AFFILIATES, THEIR CUSTOMERS, OR ANY OTHER PARTY, FROM OR AGAINST ANY CLAIMS, DEMANDS, OR CAUSES OF ACTION, INCLUDING ANY DAMAGES, COSTS OR EXPENSES INCURRED BY SUCH PARTIES, ARISING FROM OR RELATING TO THE ACTUAL OR ALLEGED PRODUCT LIABILITY, BREACH OF SECURITY, LOSS OF DATA, OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS RELATED (DIRECTLY OR INDIRECTLY) TO THE MANUFACTURE, SALE, OR USE OF GOODS. BUYER WARRANTS THAT IT HAS ALL NECESSARY LEGAL RIGHTS TO ALL INTELLECTUAL PROPERTY IT PROVIDES TO SELLER. BUYER WILL INDEMNIFY, DEFEND AND HOLD HARMLESS SELLER, ITS AFFILIATES, AND ITS VENDORS, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FROM AND AGAINST ANY LIABILITIES, LOSSES, DAMAGES, COSTS OR EXPENSES OF ANY KIND (INCLUDING REASONABLE LEGAL FEES AND DISBURSEMENTS) ARISING OR RESULTING FROM CLAIMS, DEMANDS, ACTIONS OR PROCEEDINGS OF ANY KIND ARISING FROM OR RELATING TO: (i) BUYER’S USE, MARKETING, DISTRIBUTION OR SALE OF GOODS IN A MANNER OTHER THAN AS SPECIFIED IN GOODS DESCRIPTIONS OR SPECIFICATIONS; (ii) SELLER’S OR ITS VENDOR’S COMPLIANCE WITH DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS PROVIDED BY BUYER; (iii) BUYER’S BREACH OF THESE TERMS OR ACTS OR OMISSIONS OF BUYER, ITS AFFILIATES, ITS AGENTS, OR THEIR RESPECTIVE EMPLOYEES, OFFICERS OR DIRECTORS; OR (iv) VIOLATION OR ALLEGED VIOLATION OF ANY APPLICABLE LAWS OR REGULATIONS BY BUYER OR ITS AFFILIATES.
Limitation of Liability. Seller will have no liability for: (i) failure to allocate or reserve any Goods for Buyer; (ii) failure to deliver Goods within a specified time period; (iii) availability and/or delays in delivery of Goods; (iv) discontinuation of Goods, product lines, or any part thereof; (v) cancellation of any orders; or (vi) shortages on shipments of Goods shipped under seal where the seal is not intact upon delivery by the carrier. THE ONLY LIABILITY SELLER WILL HAVE WITH RESPECT TO ANY DAMAGED OR DEFECTIVE GOODS WILL BE THE RIGHTS DESCRIBED IN SECTION 6 OF THESE TERMS. BUYER AGREES THAT SELLER’S LIABILITY FOR DAMAGES ARISING UNDER THESE SALES TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL BE LIMITED TO ACTUAL, PROVEN, DIRECT DAMAGES AND WILL NOT EXCEED THE NET AMOUNT PAID TO SELLER BY BUYER FOR THOSE GOODS WHICH ARE THE SUBJECT OF THE CLAIM. TO THE FULLEST EXTENT PERMITTED BY LAW, BUYER WAIVES ANY CLAIMS, DEMANDS, CAUSES OF ACTION, OR RECOVERIES FOR INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING PURSUANT TO A SALES CONFIRMATION AND THESE TERMS OR OTHERWISE WITH RESPECT TO THE SALE OF GOODS, OR FAILURE TO PERFORM IN ACCORDANCE WITH THESE TERMS, INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INJURY TO PERSONS OR PROPERTY, BUSINESS INTERRUPTION OR DAMAGE TO BUSINESS REPUTATION OR LOSS OF GOODWILL, LOSS OF DATA, OR SECURITY BREACH, REGARDLESS OF THE THEORY UPON WHICH ANY CLAIM MAY BE BASED, AND EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING ANY TORT OR STATUTORY CAUSES OF ACTION. BUYER EXPRESSLY WAIVES ALL CLAIMS FOR ALL SUCH DAMAGES. THIS SECTION 8 WILL SURVIVE ANY TERMINATION OF THESE TERMS. THE OBLIGATIONS OF SELLER AND ANY OF ITS AFFILAITES AND SUBSIDIARIES UNDER THESE TERMS ARE THE SEVERAL OBLIGATIONS OF EACH SUCH ENTITY, AND NOTHING HEREIN WILL CREATE ANY JOINT AND SEVERAL LIABILITY BETWEEN OR AMONG SELLER AND ANY OF ITS AFFILAITES AND SUBSIDIARIES.
Compliance with Laws. Each Party agrees to abide by all laws and regulations applicable to its performance of its obligations pursuant to a Sales Confirmation and these Terms. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under a Sales Confirmation and these Terms. Buyer shall comply with all export and import laws of all countries involved in the sale of Goods in respect of a Sales Confirmation and these Terms or any resale of Goods by Buyer. Buyer assumes all responsibility for the acquisition of government import clearance, where applicable. Seller may terminate a Sales Confirmation if any governmental authority imposes anti-dumping or countervailing duties or any other penalties on Goods.
Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement and such failure continues for seven (7) days after Buyer’s receipt of written notice of non-payment; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) 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. Each Party acknowledges that it may receive or become aware of confidential information and trade secrets of the other Party (collectively “Confidential Information”). Confidential Information includes all non-public information, technical data, or know-how, including, but not limited to, that which relates to research, product plans, products, services, customers, markets, software, software code, documentation, developments, inventions, lists, trade secrets, processes, designs, drawings, engineering, hardware configuration information, supplier, business, marketing or finances, which is designated in writing to be confidential or proprietary or is information that should reasonably be understood to be confidential under the circumstances. The receiving Party agrees to maintain and protect the confidentiality of all of the disclosing Party’s Confidential Information of which it becomes aware (whether or not identified or marked as confidential at the time of its disclosure) and not disclose such Confidential Information to any person, firm, or entity other than its own employees who have a need to know such Confidential Information for purposes of these Terms, and the receiving Party shall preserve and protect the confidentiality of all Confidential Information of which it becomes aware using the same degree of care that it uses to protect its own trade secrets, but never less than reasonable care. Further, the receiving Party shall not use or disclose any Confidential Information for any purpose not permitted by these Terms. The restrictions on disclosure set forth above shall not apply when, and to the extent that, Confidential Information: (a) is part of the public domain through no action or failure to act by the receiving Party; (b) is made available to the general public by the disclosing Party or a third party who is lawfully in possession of such information, not as a result of any action or failure to act on the part of the receiving Party; (c) was previously known to the receiving Party free of any obligation to keep it confidential; (d) is subsequently disclosed to the receiving Party free of any obligation to keep it confidential; or (e) is independently developed by the receiving Party or a third party other than in breach of these Terms. The Parties agree that violations of this Section 11 are likely to cause irreparable harm and therefore the disclosing Party may seek immediate injunctive relief without the need of posting bond in the event of any such violation. Further, either Party may disclose Confidential Information of the other Party if required to do so by court order or other legal process; provided, that, the Party required to make such disclosure delivers to the other Party written notice thereof sufficiently in advance of the required disclosure to permit the other Party to seek a protective order or other limitation with respect thereto; and, provided, further, that the Party required to make such disclosure discloses only the Confidential Information required to be so disclosed.
Relationship of the Parties. The Parties are independent contractors. Neither a Sales Confirmation nor these Terms shall create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
Force Majeure. Seller will provide Goods as indicated in an applicable Sales Confirmation, or as modified by these Terms, but Seller assumes no responsibility or liability and will accept no chargebacks for loss or damage due to delay or inability to deliver that is beyond Seller’s reasonable control including, but not limited to, liability for Seller’s non-performance caused by pandemic, flood, fire, earthquake or explosion, war, terrorism, invasion, riot, or other civil unrest, actions, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including but not limited to imposing an embargo, export or import restriction, quota or other restriction or prohibition, or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation facilities. If any of the foregoing events occurs, Seller shall give notice to Buyer within ten (10) days after becoming aware of the commencement of any such event and shall take all reasonable steps to avoid or remove such cause of non-performance and shall resume performance hereunder whenever such causes are removed. If Seller is unable to remove such cause of non-performance and cannot resume performance within thirty (30) days of giving notice to Buyer, then Buyer may, at its option, and in its sole discretion terminate an applicable Sales Confirmation without further liability to Seller. Upon such termination, Seller shall refund any amounts paid by Buyer to Seller, except with respect to Goods previously delivered to Buyer.
Governing Law. These Terms and each Sales Confirmation shall be construed according to and governed by the laws of the province of Ontario and the laws of Canada applicable therein, without giving effect to the principles of conflicts of laws thereof. Subject to Section 15, Buyer and Seller irrevocably submit to the exclusive jurisdiction of the Ontario Superior Court of Justice in Kingston, Ontario, Canada, with respect to any dispute or matter relating to these Terms or a Sales Confirmation. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or any Sales Confirmation or to the purchase and sale of any Goods hereunder.
Dispute Resolution.
Negotiation. In the event of a controversy, dispute or claim arising out of, in connection with, or in relation to the interpretation, performance, non-performance, validity or breach of these Terms or otherwise arising out of, or in any way related to these Terms or the transactions contemplated hereby (collectively, “Agreement Disputes”), the Parties shall negotiate for a reasonable period of time to settle such Agreement Dispute; provided, that such reasonable period shall not, unless otherwise agreed by the Parties in writing, exceed forty-five (45) days from the time of receipt by a Party of written notice of such Agreement Dispute (“Dispute Notice”).
Mediation. If, within forty-five (45) days after receipt by a party of a Dispute Notice, the Parties have not succeeded in negotiating a resolution of the Agreement Dispute, the Parties agree to submit the Agreement Dispute at the earliest possible date to non-binding commercial mediation. The Parties agree to participate in good faith in the mediation and negotiations related thereto for a period of thirty (30) days or such longer period as they may mutually agree following the initial mediation session (the “MediationPeriod”).
Binding Arbitration. If an Agreement Dispute submitted to mediation has not been resolved for any reason after (45) days after the Mediation Period, the Parties will submit the dispute to binding arbitration at a mutually agreed location in Ontario, Canada. Any arbitration award may be enforced by a party in any court of competent jurisdiction.
Costs. The Parties will share equally the costs of mediation; provided, however, that each Party shall bear its own costs in connection with arbitration.
General. No Sales Confirmation nor the rights and obligations set forth in these Terms may be assigned by either Party without the written consent of the other. A change of control shall be considered an assignment for the purposes of the foregoing. No waiver of any term or condition hereunder shall be valid unless in writing and signed; provided, that either Party may, with the consent of the other Party, such consent not to be unreasonably withheld, assign or transfer its rights and obligations under these Terms in connection with a merger, consolidation, reorganization, sale of securities, sale of assets, sale of business or other similar transaction, further provided, that the assignee or transferee agrees in writing to be bound by these Terms. These Terms shall not be construed against the Party preparing them, but shall be construed as if both Parties jointly prepared these Terms and any uncertainty or ambiguity shall not be interpreted against any one Party. If any provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable and these Terms shall be construed and enforced as if such illegal, invalid or unenforceable provision had never been made a part hereof. The remaining provisions herein shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable provisions or by their severance herefrom. Any notice to be provided pursuant to these Terms shall be in writing and will be personally delivered, sent prepaid by reputable overnight courier service or sent by e-mail transmission. Notice will be given when personally delivered, or when sent by e-mail transmission or one (1) business day after deposit with the overnight courier. The address for notice shall be as set forth in an applicable Sales Confirmation, or as otherwise provided by the Parties, one to the other, from time to time. Any terms and conditions herein which, by their nature, extend beyond the termination, including without limitation Sections 2, 3, and Section 7 through to and including Section 17 shall survive the termination or expiration of a Sales Confirmation.
Entire Agreement. These Terms, together with all Sales Confirmations between the Parties, constitute the entire, complete, and exclusive agreement between the Parties with respect to the subject matter hereof and contains all the agreements and conditions of sale. No course of dealing or usage of the trade shall be applicable unless expressly incorporated into a Sales Confirmation. These Terms may not be added to, modified, superseded or otherwise altered except by a written modification signed by each Party. All transactions between the Parties in respect of Goods shall be governed solely by these Terms.
TERMS OF USE
The website www.gentek.com (the “Site”) is operated by TDL CANADA INC. (collectively, “us”, “our”, “we”, or “Gentek” or “TDL Canada Inc”).
These terms of use set forth the general terms and conditions of your use of the Site and are in addition to (not in lieu of) any other agreement that you may enter into with us, including any other terms referenced herein or therein, which together constitute the entire Agreement (collectively, the “Agreement”) between us and you (“you” or “your”).
By accessing or using the Site, you (together with all persons accessing or using the Site, collectively, the “Users”) signify that you have read, understand, and agree, without limitation or qualification, to be legally bound by this Agreement in all respects with respect to the Site, our provision of the Site, and your use of the Site.
PLEASE READ THIS AGREEMENT CAREFULLY AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE, BUT ARE NOT LIMITED TO, VARIOUS LIMITATIONS, EXCLUSIONS, AND INDEMNITIES.
1. Registration and Your Account
In order to use certain features of the Site, you must register for an account (your “User Account”) by completing a registration form on the Site wherein you will be required to provide certain information including, but not limited to, your business name, business address, contact name, contact number, email address, and payment information. You agree to: (a) provide us with accurate, current, and complete information about you as may be prompted by any registration forms on the Site (“Registration Data”); and (b) maintain and promptly update the Registration Data, and any other information you provide to us, to keep it accurate, current, and complete. We reserve the right to reject any registration form in our sole discretion.
You hereby agree to be fully responsible for: (a) immediately updating your User Account to account for any change in Registration Data; (b) all use of your User Account; (c) any action that takes place using your User Account by any person or automated process; (d) maintaining the confidentiality and security of the password to your User Account (as applicable); and (e) immediately notifying us upon any unauthorized use of your password or your User Account. You may be liable for the losses incurred by us or others due to any unauthorized use of your User Account. We have no control over the use of any User’s account and expressly disclaim any liability derived therefrom.
2. Legal Capacity
You represent and warrant that you possess the legal right, capacity, and ability to agree to this Agreement, use the Site and place and pay for orders in accordance with this Agreement, on behalf of yourself or the company you represent, whether you place orders directly or receive confirmation e-mails from the Site. If you are an individual, you represent and warrant that you have reached the age of majority in the jurisdiction in which you reside (being the legally required age in the jurisdiction in which you reside to be capable of entering into binding contracts), and that you are in any event at least 18 years old. If you are using the Site on behalf of a corporation or other entity, you represent and warrant that you are authorized to enter into this Agreement on behalf of, and bind the entity to, this Agreement and register for the Site and all references to “you” or “your” throughout this Agreement will include such organization, jointly and severally with you personally.
3. Payments
All amounts payable to us under this Agreement are exclusive of applicable taxes (e.g. sales, use, or value-added tax) which will be billed to and paid by you at the time of purchase. When you make a purchase, you agree to pay all specified amounts by using any of the payment methods which we may accept from time to time. We reserve the right to remove or amend the available payment methods at our sole discretion.
You may pay by designating a credit card for payment. You authorize us, or any other company that acts as a billing agent for us, to charge the credit card you designate to pay any amounts described herein and authorize us, or any other company that acts as a billing agent for us, to continue to attempt to charge all sums described herein to your credit card until all required amounts are paid in full. If payment is not received by us from your credit card issuer, you agree to pay all amounts due upon demand by us.
While we will use commercially reasonable efforts to ensure the security of all credit card and all other information, we expressly disclaim any liability for any damage that may result should any information be released to any third parties, and you agree to hold us harmless for any damages that may result therefrom.
We may change the costs payable for the purchase of our products at any time without any notice to you. We may also institute new costs or charge a cost for the use of the Site or any part thereof where a cost was not previously charged.
4. Privacy Policy
Your privacy is important to us. Our privacy policy can be found at the bottom of the Gentek home page, www.gentek.com. Please read our privacy policy carefully for information relating to the collection, use, and disclosure of information.
While we take commercially reasonable steps to protect your information and keep it secure, you also play a role in protecting your information. You must maintain the security of your online transactions by not sharing your passwords and account information with any unauthorized parties.
Please also be aware that no data transmission over the Internet or encryption method can be guaranteed to be secure. We cannot guarantee the security of any information you transmit to us over the Site, and therefore, your use the Site is at your own risk.
5. Updates and Modifications
a. Additional Guidelines or Rules. Additional guidelines or rules may be applicable to your use of specific features of the Site. If there is a conflict between the terms and conditions of this Agreement and those of another agreement you may have with us in respect of your use of specific features of the Site, the terms and conditions of the other agreement will apply in respect of your use of such specific features of the Site.
b. Modification of this Agreement. We reserve the right, at our sole discretion, to change, modify, add, or remove portions of this Agreement at any time. Please check this Agreement periodically for changes. You are responsible for regularly reviewing the Site to obtain timely notice of such amendments. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must deactivate your account, and immediately stop using, the Site. Your continued use of the Site after the posting of changes constitutes your binding acceptance of such changes. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement in place at the time the dispute arose.
c. Updates to the Site. You acknowledge and agree that we may update the Site with or without notifying you. Such updates shall be subject to the terms and conditions of this Agreement.
6. Grant Of Limited License To Use The Site
Provided that you are eligible for use of the Site, and that you agree to this Agreement, we hereby grant you a limited, personal, non-transferable, revocable (at any time with or without notice or cause) and non-exclusive right and license to access and use the Site solely for your personal use, and for such use expressly permitted by this Agreement, subject to this Agreement. If we revoke our license to you, you agree that the terms of the Agreement will survive such revocation and continue to bind you.
7. User Content
a. All information, material or content submitted by a User, whether publicly or privately posted, e-mailed, transmitted, uploaded, or otherwise submitted to us via the Site (“Submitted Content”) is the sole responsibility of the person from which such Submitted Content originated. You acknowledge and agree that you are entirely responsible for all Submitted Content that you post, e-mail, transmit, upload, or otherwise submit via the Site, including the accuracy of such Submitted Content. Under no circumstances will we be liable in any way for any loss, damage or injury related to, or arising as a result of, any Submitted Content, including, but not limited to, any errors or omissions in any such content, or any loss or damage of any kind incurred as a result of the use of any Submitted Content posted, e-mailed, transmitted, uploaded, or otherwise submitted via the Site.
b. You agree to not use the Site to post, e-mail, transmit, upload or otherwise submit any Submitted Content that: (i) promotes information that is false, misleading, illegal or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libellous; (ii) infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party including promoting an illegal or unauthorized copy of another person's copyrighted work; (iii) you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information); or (iv) contains viruses, worms, corrupt files, trojan horses or other forms of corruptive code, or any other content which may compromise the Site.
c. You acknowledge and agree that we may preserve Submitted Content and may also disclose Submitted Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the terms of this Agreement; (iii) respond to claims that any Submitted Content violates the rights of third-parties; or (iv) protect our rights, property, or personal safety and those of our users and/or the public.
d. You may request that any of your Submitted Content be deleted. You understand that your Submitted Content may persist in backup copies for a reasonable period of time. You agree and understand that any of your Submitted Content that has been shared with other Users may remain with Users who have previously accessed your Submitted Content.
8. User Conduct
a. When using or accessing the Site, you agree to act in accordance with all applicable laws and in good faith.
b. You may not, directly or indirectly: (i) use the Site for any illegal or unauthorized purpose; (ii) attempt to mislead any person as to your identity or the origin of any communication transmitted through the Site; (iii) collect or harvest any personal information, including account names, from the Site; (iv) attempt to circumvent the security systems of the Site; (v) attempt to gain access to or use the Site in a fraudulent manner; (vi) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (vii) modify, adapt, translate or create derivative works based upon the Site or any part thereof, except and only to the extent expressly permitted by us herein or to the extent the foregoing restriction is expressly prohibited by applicable law; (viii) attempt to gain access to any other User's account; (ix) frame or mirror any part of the Site; (x) attempt to ascertain any other user's password and/or personal information by any means whatsoever, including by use of the Site or any other application or website, or by e-mail communication; (xi) imply or state that any statements you make (whether on or off the Site) are endorsed by us, without our prior written consent; or (xii) adapt, alter, resell, license, sublicense, distribute, rent, lease, or translate the Site for your own personal or commercial use or include any of the Site in a service bureau or outsourcing offering.
c. You may not use or launch any automated system, including “robots”, “spiders” or “offline readers” that accesses the Site in a manner that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser in ordinary and customary usage. Notwithstanding the foregoing, we grant the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. We reserve the right to revoke these exceptions either generally or in specific cases.
9. Third-Party Sites, Applications, Products and Site
The Site may include links, plugins, or references to other web sites, applications, or services (“Third-Party Sites”) solely as a convenience to Users. We do not endorse any such Third-Party Sites, the information, materials, products, or services contained on or accessible through Third-Party Sites nor do we review or assume any responsibility for the same. Access and use of Third-Party Sites, including the information, materials, products, and services on or available through Third-Party Sites, is solely at your own risk and is subject to the Third-Party Sites’ terms of use, privacy policy and other terms and conditions.
10. Ownership and Proprietary Rights
The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Site (the “Materials”) are protected by Canadian and foreign copyright, trademark, patent, and other intellectual property laws. All Materials contained on the Site are the property of us and/or our third-party licensors. All trademarks, service marks, and trade names are proprietary to us and/or our third-party licensors. You agree not to sell, license, sublicense, distribute, copy, reverse engineer, modify, publicly perform, or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. We reserve all rights to the Materials not expressly granted in this Agreement. Any unauthorized or prohibited use may subject you to civil liability and criminal prosecution under applicable laws.
11. Remedies
a. Our Remedies. You agree that we may, in our sole discretion, for any reason, subject to applicable law, and without penalty, terminate any account (or any part thereof) you may have with us or your use of the Site and remove and discard all or any part of your User Account. We may also in our sole discretion and at any time discontinue providing you access to the Site, or any part thereof, with or without notice. You agree that any termination of your access to the Site or any User Account you may have, or any portion thereof, may be affected without prior notice to you, subject to applicable law, and you agree that we will not be liable to you or any third-party for any such termination. Upon termination for any reason, all licenses and other rights granted to you in this Agreement will immediately terminate, you must cease to use the Site, and you are thereafter prohibited from registering and creating a new account under your name or business name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies we may have at law or in equity. We reserve all rights and remedies against any User who violates this Agreement. Even after your right to use the Site is suspended, terminated, or limited, this Agreement will remain enforceable against you. We reserve the right to take appropriate legal action pursuant to the Agreement. YOU ACKNOWLEDGE THAT A VIOLATION OF THIS AGREEMENT MAY CAUSE IRREPARABLE HARM TO US AND YOU AGREE THAT, IN ADDITION TO ANY OTHER REMEDIES PROVIDED BY LAW OR IN EQUITY, WE SHALL BE ENTITLED TO SEEK INJUNCTIVE RELIEF AGAINST YOU FOR ANY SUCH VIOLATION WITHOUT HAVING TO POST A BOND.
b. Your Remedies. To the extent permitted by applicable law, your only remedy with respect to any dissatisfaction with: (i) the Site; (ii) any term of this Agreement; (iii) any policy or practice of ours in operating the Site; or (iv) any content or information transmitted through the Site, is to terminate your User Account. You may terminate your User Account at any time by deleting your User Account with the Site and discontinuing use of any and all parts of the Site.
12. Indemnification
You agree to indemnify, defend, and hold us and our directors, officers, shareholders, agents, licensors, contractors and employees harmless from and against all damages, liability, loss, costs and expenses (including reasonable legal fees and costs) arising out of: (i) your breach of this Agreement; (ii) your breach of any applicable law or regulation; (iii) your infringement or violation of the rights of any third parties (including intellectual property rights); and (iv) any breach of the representations, warranties, and covenants made herein, by you.
13. Disclaimer of Warranties
TO THE MAXIMUM EXTENT PERMITTED BY LAW: THE SITE IS PROVIDED “AS IS” AND USED AT YOUR SOLE RISK WITH NO WARRANTIES WHATSOEVER; WE, AND ALL OF OUR DIRECTORS, OFFICERS, AGENTS, LICENSORS, EMPLOYEES AND CONTRACTORS DO NOT MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS AND EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SITE INCLUDING WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. WE, AND OUR SUBSIDIARY COMPANIES AND AFFILIATED LEGAL ENTITIES AND ALL OF OUR DIRECTORS, OFFICERS, AGENTS, LICENSORS AND EMPLOYEES FURTHER DO NOT REPRESENT OR WARRANT THAT THE SITE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE.
14. Limitation of Liability and Damages
a. WE AND ALL OF OUR DIRECTORS, OFFICERS, AGENTS, LICENSORS, EMPLOYEES AND CONTRACTORS SHALL NOT BE LIABLE TO YOU, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES OR LOSSES HAS BEEN NOTIFIED TO US, FOR: (i) ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES; OR (ii) ANY LOSS OF INCOME, BUSINESS, ACTUAL OR ANTICIPATED PROFITS, OPPORTUNITY, GOODWILL OR REPUTATION (WHETHER DIRECT OR INDIRECT); OR (iii) ANY DAMAGE TO OR CORRUPTION OF DATA (WHETHER DIRECT OR INDIRECT); OR (iv) ANY CLAIM, DAMAGE OR LOSS (WHETHER DIRECT OR INDIRECT) ARISING FROM OR RELATING TO ANY PRODUCT OR SERVICE PROVIDED BY A THIRD PARTY UNDER THEIR OWN TERMS OF SERVICE OR ANY THIRD PARTY APPLICATION OR WEBSITE
b. IN NO EVENT WILL WE OR ANY OF OUR DIRECTORS, OFFICERS, AGENTS, LICENSORS, EMPLOYEES OR CONTRACTORS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SITE (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED, IN THE AGGREGATE, THE LESSER OF: (I) THE AMOUNT PAID BY YOU AND COLLECTED BY US DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE WHICH GAVE RISE TO THE MATTER FOR WHICH DAMAGES ARE SOUGHT; AND (II) $100;
c. YOU ACKNOWLEDGE AND AGREE THAT WE HAVE OFFERED THE SITE AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND US, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND US.
d. YOU AGREE THAT ANY CLAIM ARISING FROM OR RELATED TO THE SITE MUST BE BROUGHT BY YOU WITHIN ONE YEAR FROM THE DATE WHEN THE CLAIM FIRST COULD BE FILED OR SUCH CLAIM IS PERMANENTLY BARRED.
e. SOME JURISDICTIONS PROHIBIT THE DISCLAIMER OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OF CERTAIN TYPES OF LIABILITY. IN SUCH CIRCUMSTANCES, TO THE EXTENT THAT SUCH PROHIBITIONS PROHIBIT ANY EXCLUSIONS AND LIMITATIONS IN THIS AGREEMENT, SUCH EXCLUSIONS AND LIMITATIONS WILL NOT APPLY TO YOU STRICTLY TO THE EXTENT NECESSARY TO MAKE THIS AGREEMENT CONSISTENT WITH SUCH PROHIBITIONS.
15. No Class Actions.
You hereby agree and acknowledge that you may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, purported class, consolidated, or representative action and you further waive any constitutional or statutory right to go to court and have a trial in front of a judge or jury on an individual, class action, or representative action basis, except and to the extent that provincial consumer protection legislation expressly preserves such an entitlement in the context of the particular dispute. You further agree that, by entering into these terms, you agree that all claims and disputes shall be resolved under this Agreement. In the event any litigation should arise between you and us, in any jurisdiction, you waive all rights to a jury trial, instead electing that the dispute be resolved by a judge and agree to take any and all action necessary or appropriate to effect such waiver.
16. Miscellaneous.
a. Submissions. We appreciate hearing from our customers and welcome your comments regarding our Site. Please be advised, however, that if you send us creative suggestions, ideas, drawings, concepts, inventions, or other similar information (collectively, the “Submission”), you grant us a royalty-free, worldwide, perpetual license to use the Submission for any purpose whatsoever, commercial, or otherwise. None of the Submission shall be subject to any obligation of confidentiality on our part and we shall not be liable for any use or disclosure of any Submission. You acknowledge that telephone calls to or from us may be monitored and recorded for the purposes of quality control and training.
b. Enforceability. Your use of the Site and the content and features accessed through the Site constitute your electronic signature to the terms set out in this Agreement and your consent to enter into agreements with us electronically. You agree that your electronic signature is the legal equivalent of your manual signature. You further agree that your use of a keypad, mouse, or other device to select an item, button, icon, or similar act/action, constitutes your signature as if actually signed by you in writing. You also agree that no certification authority or other third-party verification is necessary to validate your electronic signature, and the lack of such certification or third-party verification will not in any way affect the enforceability of your electronic signature. This Agreement will be deemed to satisfy any writings requirements of any applicable law, notwithstanding that the agreement set out in this Agreement is written and accepted electronically. All contracts between you and us completed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed written agreement.
c. Notice. You consent to receive communications from us with respect to this Agreement, the Site, notices, and disclosures electronically. We will communicate with you by e-mail to the email address attached to your User Account through your Registration Data or by posting notices on the Site. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
d. Force Majeure. We will not be liable for any losses caused directly or indirectly as a result of causes or events beyond our control, including natural disasters, acts of God, war, terrorism actions or decrees of governmental bodies, exchange or market rulings, failure of the internet, communication lines or utility systems, equipment and systems failures, unauthorized access, and theft (each, a “Force Majeure Event”). All our obligations under this Agreement and provision of the Site will be suspended for the duration of such Force Majeure Event.
e. Waiver. Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. Any waiver of any provision of this Agreement will be effective only if in writing and signed by us.
f. Governing Law. You agree that this Agreement is governed by the laws of the Province of Ontario and the laws of Canada applicable in the Province of Ontario, excluding any principles of conflicts of laws that would apply a different body of law. You irrevocably submit and attorn to the exclusive jurisdiction and venue of the courts of the Province of Ontario with respect to any matters arising from or related to this Agreement.
g. Severability. If any provision of this Agreement is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from this Agreement to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
h. Assignment and Enurement. We may at any time assign our rights and obligations under this Agreement, in whole or in part, without notice to or consent from you. You may not assign this Agreement without our prior written consent. This Agreement will enure to the benefit of and bind you and us and our respective personal and legal representatives, successors and permitted assigns.
i. Relationship. You agree that no joint venture, partnership, fiduciary, employment, or agency relationship exists between us and you as a result of this Agreement or your use of the Site.
j. Survival. Upon termination of this Agreement, any provision which, by its nature or express terms should survive, will survive such termination or expiration.
k. Interpretation. In this Agreement: (i) the captions and headings are for convenience only and do not constitute substantive matter and are not to be construed as interpreting the contents of this Agreement; (ii) the word “including”, the word “includes” and the phrase “such as”, when following a general statement or term is not to be construed as limiting, and the word “or” between two or more listed matters does not imply an exclusive relationship between the matters being connected; and (iii) all references to website addresses or URLs will also include any successor or replacement websites containing substantially similar information as the referenced website(s).
l. Entire Agreement. This Agreement, as amended from time to time, including any and all documents, rules, terms, and policies referenced herein, including but not limited to the Privacy Policy, constitutes the entire agreement between us and you with respect to the matters referred to in this Agreement and supersedes all prior and contemporaneous agreements and understandings, whether electronic, oral or written, between us and you with respect to such matters.
m. Questions or Complaints. If you have any questions about this Agreement or the Site, please feel free to contact us at sales@gentek.com.
n. English Language. The parties have requested and agree that this Agreement and all documents relating thereto be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents qui s'y rattachent soient rédigés en anglais.
Last Revised: November 1, 2023
TDL Canada Inc. 160 Bradwick Drive #31 Concord, Ontario L4K 1K8 1-877-463-8482 www.gentek.com
TERMS OF SALE
The terms and conditions contained herein constitute the entire agreement “Agreement”) between TDL Canada Inc. (“Seller”) and Buyer with respect to products offered for sale (“Goods”) as described more fully on page 1 of the Sale Agreement and shall supersede all prior correspondence, oral communications,
Buyer’s purchase orders (past or present), confirmation or agreement of any agent of either party with respect to the Goods. In the event that Buyer relies on documents extraneous to this Agreement, the provisions of said documents shall not be deemed accepted unless expressly assumed by Seller.
1. Prices: All prices stated herein are F.O.B. Concord, Ontario, unless otherwise specified by Seller. Seller hereby reserves the right, at any time, to modify or update the price of goods without notice and all changes shall become effective and binding upon the subsequent modification in price.
2. Terms of Payment: Full payment for Goods shall be upon conclusion of the Sale Agreement by one of the accepted methods including credit card, wire transfer, or online payment. Seller will only accept cash, business checks or personal checks if approved in advance.
3. Special Orders: Orders for Goods that are not normally held in stock by the Seller, for Goods with unique specifications, or limited in production, or orders made subsequent to the processing of Buyer’s order are considered Special Orders. All special orders require a minimum non-refundable deposit of 20% of total value of the Goods (before tax). If there is a cancellation for any reason by Buyer, Buyer forfeits the entire deposit to Seller. Seller shall not be liable for late shipments. Given shipping dates are approximate and are only estimates. Buyer shall not be entitled to chargebacks, reductions in price or other offsets as a result of late shipments or failure to deliver in the estimated time of delivery.
4. Emergency orders: Where the Buyer requires Seller to either ship Goods in stock or to order Goods from a manufacturer and subsequently ship said Goods to Buyer within specific delays, which are shorter than the normal delays, any added costs for shipping or for the Goods themselves are assumed by Buyer.
5. Back Orders: If Seller is unable to immediately fill the entire order, Seller shall notify Buyer and if Buyer so requests, Seller shall ship those goods in stock as an accommodation to the Buyer’s order. The balance of the order shall be shipped on back order and the Goods shall be sent to Buyer upon receipt in stock unless otherwise directed by Buyer.
6. Deliveries: All shipping dates given by Seller are approximate. Under normal circumstances orders will be shipped within 5‐7 business days. Deliveries may be subject to delay due to, but not limited to, acts of God, strikes, labour difficulties, fire, delay or defaults of common carriers or any other delays beyond Seller’s reasonable control, and Seller shall not be liable for any loss or damage arising there from. Seller represents that it possesses the skill to properly package the Goods being shipped. All Goods damaged in transit are not the responsibility of Seller. All claims are to be made with the corresponding freight or shipping company. Seller shall have the additional right, in the event of an above referenced occurrence, to cancel this Agreement or any part of it without any resulting liability. Any delivery not in dispute shall be paid in full, regardless of controversies relating to other delivered or undelivered Goods.
7. Risk of Loss: Risk of loss of the Goods shall pass to Buyer once the Goods are shipped from the Seller’s premises (F.O.B.) to Buyer.
8. Warranties: The Seller offers no supplementary warranty other than the manufacturer’s warranty except where required by law. If Buyer receives Goods in a defective condition due to imperfect material or workmanship, and if such information is reported to Seller within thirty (30) days, a Return Merchandise
Authorization (RMA) number shall be issued by Seller to Buyer. If said Goods are deemed by Seller or by the appropriate manufacturer to be defective due to imperfect material or workmanship, Seller or appropriate manufacturer shall correct said Goods. The Seller is not obligated to intervene on behalf of the Buyer to have the manufacturer’s warranty executed, although the Seller may provide assistance if so chooses.
9. Returns: All requests to return Goods not covered under section 8 must be reported to Seller within thirty (30) days. Failure to give notice within thirty days after receipt shall constitute an irrevocable acceptance of the Goods. No request shall be made after the Goods are used, processed, opened, or changed in any manner from the original condition. All warranty cards and similar items must be properly packaged and included with the Goods and returned to Seller in the original packaging. All returns must be sent shipping prepaid with appropriate care and external packaging to ensure Goods arrive in mint condition. No Goods shall be returned to Seller unless Seller has authorized a return and provided an RMA to Buyer. Any returns are subject to a twenty five percent (25%) restocking charge.
10. Limitation of Damages: Buyer’s exclusive remedy for breach of contract or warranty shall be limited to the price of the Goods only. In the event of a breach or repudiation of this Agreement by Seller, Buyer shall not be entitled to recover any incidental or consequential damages.
11. Use of Goods: Seller is engaged in the selling of products for purposes including but not limited to: residential and commercial. Buyer hereby warrants and represents that it has the knowledge and expertise related to said types of Goods. Seller is not liable for any Buyer misconceptions, misunderstandings or disappointments associated, related to, or concerning said Goods. Seller is not liable for any damages caused by misuse of Goods by Buyer.
12. Taxes: The amount of Goods sold listed herein shall have all applicable taxes added to the purchase price and these shall be paid by Buyer
13. Assignment / Delegation: Buyer shall assign no right or interest in this Agreement without Seller’s prior written consent. Any attempted assignment without such consent shall be wholly void and without effect for all purposes.
14. Default: If the Buyer fails to pay the sale price and/or to accept delivery of the Goods or is in default or breach of another term and condition of the Agreement, Seller, at its option by giving written notice to Buyer, may, as to this Agreement and such other agreements as may exist between Buyer and Seller:
-> cancel any and/or all agreements; and/or
-> defer shipment or delivery of all or any part until such default or breach is cured; and/or
-> cancel any undelivered portions thereof; and/or
-> demand immediate payment of all amounts owed by the Seller under the agreement. If Seller elects to cancel, Seller may sell all or part of the delivered Goods without notice to Buyer, except as may be required by law (and in such event five (5) days notice shall be deemed reasonable notice under the circumstances) at public or private sale, holding Buyer liable for any damages or financial loss including incidental expenses and attorney’s fees resulting to Seller by reason of Buyer’s default or breach. Seller shall not be limited in its rights and remedies against Buyer for any cause whatsoever to those remedies set forth herein, but shall have such other rights and remedies as may be available to under the laws of the province of Ontario or any other applicable laws.
15. Buyer’s Duty: The duty of the Buyer is to accept the Goods and pay in accordance with the terms of this Agreement.
16. Change in circumstances: In the event Buyer’s financial condition or responsibility becomes unsatisfactory to Seller, Seller shall have the right to seek adequate assurances, in writing, from Buyer to secure due performance. If Seller cancels this Agreement, Buyer shall reimburse Seller for all actual expenditures, commitments, liabilities, and costs made or incurred with respect to any Goods ordered but not yet paid for by Buyer, plus loss of profit, less any net recovery to Seller on disposition of such items to others within a period of thirty (30) days after the cancellation. If Buyer cancels this agreement, Seller may retain all or a portion of any down payment or deposit to cover the costs and expenses incurred due to such cancellation.
17. Waiver: Except as may be expressly provided in a writing signed by the parties to this Agreement, the failure or delay of either party to this Agreement to insist in any instance on strict performance of any provision of this Agreement shall not be construed as a Waiver of that provision or the relinquishment of any rights under that provision in the future, but the provision shall continue and remain in full force and effect.
18. Severability: Any term or provision of this Agreement that is invalid or unenforceable in any jurisdiction shall be ineffective only to the extent of such invalidity or unenforceability and only as to such jurisdiction without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of these terms or provisions in any other jurisdiction.
19. Modifications: This agreement may not be modified or rescinded except by express written agreement signed by both parties.
20. Indemnification: Buyer hereby agrees to defend, indemnify, protect, and hold Seller, its parent, subsidiary, and affiliated entities, as well as each officer, director, employee, representative, agent, dealer, successor and permitted assign of any of the above harmless from and against any and all expenses, damages, claims, suits, losses, actions, judgments, proceedings, liabilities, and costs whatsoever arising out of:
-> Buyer’s breach, misrepresentation, or non-performance under this Agreement; or
-> Negligence or wilful misconduct of Buyer or its agents and employees which arise out of Buyer’s performance or non-performance under the terms of this Agreement; or
-> an accident, injury, property damage or death that in any manner relates to this Agreement, including without limitation, those actions, or other liabilities to third persons and their heirs, legal representatives, successors, and assigns; or
-> Buyer’s failure to comply with any provincial, federal, state, or municipal laws, rules, and/or regulations; or
-> any payment owed by Buyer to persons or entities benefiting from this Agreement; or
-> all other activities of Buyer reasonably connected with this Agreement.
21. Governing Law: The validity of this Agreement and any of its terms or provisions, as well as the rights and duties of the parties under this Agreement, shall be construed pursuant to and in accordance with the laws of Ontario. The parties specifically agree to submit to the jurisdiction of the courts of Ontario.
22. This agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile signatures shall be binding upon receipt.
Last updated: November 1, 2023
TDL Canada Inc. 160 Bradwick Drive #31 Concord, Ontario L4K 1K8 1-877-463-8482