These terms of Sale and Delivery shall be binding, shall constitute the entire agreement between the Parties pertaining to the subject matter hereof and shall supersede all prior agreements, understandings, negotiations and discussions, whether oral or written. Without limiting the generality of the foregoing, these Terms of Sale and Delivery shall govern and prevail, not withstanding any inconsistent or contradictory terms and conditions that may be stipulated by the customer in any purchase order or other document, unless the latter are expressly accepted by ROSTA INC. (here in after " ROSTA" ) in writing. The contract incorporating these Terms of Sale and Delivery shall be deemed to have been entered into upon receipt of ROSTA's written confirmation stating ROSTA's acceptance of the order. All orders that are trans mitted verbally or by phone are accepted only at the customer's risk.
ROSTA's prices are quoted and apply to ex warehouse. For greater clarity, risk of damage and loss of the ROSTA products the "Products" or "Product") shall pass to the customer prior to the loading of the carrier at the loading dock of ROSTA's warehouse. Payment terms are Net 30 Days from date of invoice, unless otherwise agreed on. All sales taxes (Goods & Services Tax and Provincial Sales Tax) are extra and shall be paid by the purchaser where applicable.
The period for delivery time shall commence once the contract has been entered into and all technical points have been settled.
The delivery time shall be reasonably extended:
– if the information required by ROSTA for the performance of the contract is not received in time, or if the customer subsequently changes it;
– if agreed terms of payment are not met, letters of cred it are opened too late, or ROSTA does not receive the necessary import licences in time;
if hindrances or delays occur which ROSTA cannot prevent despite using reasonable diligence and/or which are beyond ROSTA's control, regard less whether they affect the customer, or a third party, or ROSTA. Such hindrances include force majeure, acts or inaction of any governmental authority, strikes, shortage of labour, transportation facilities or necessary materials or supplies, late or deficient delivery by subcontractors of raw material , semi finished or finished Products, breakdown in, or the loss of production or anticipated production from the plant or equipment, or the need to scrap work pieces due to incorrect tolerances.
The customer shall not be entitled to claim any damages for delayed delivery un less such delay is clearly established to be the fault of ROSTA and then only if ROSTA is unable to substitute material of equivalent quality, failing which the maximum amount of damages claimable shall be ½% of the in voice price of the delayed shipment for each full week of delay commencing after the first two weeks during which there shall be no entitlement to any such damages, to a maximum total of 5% of such invoice price. The aforesaid amount shall constitute liquidated damages and the sole and exclusive claim and recourse of the customer for such delayed delivery, all other claims, damages and recourses being hereby excluded.
Unless prepaid shipment is expressly agreed upon, the shipping costs shall be borne by the customer in conformity with paragraph (2). Shipment is effected at customer's risk, even if freight paid delivery is agree d on. Customers requiring rush air freighted shipments (due, for example to a breakdown at the customers facility) from ROSTA's manufacturing facility in Europe, will be solely responsible for all costs incurred by ROSTA to effect and obtain such air freighted shipment, and, in addition to a $75.00 service fee.
Subject to the conditions and exception
set out herein below and to the inspection period stipulated in paragraph 9
below, ROSTA hereby warrant that the delivered Products will be free from
defects in material and workmanship for a twelve (12) month period following
delivery (hereinafter referred to as the "Warranty Period"). Where
delivered goods are established to be defective in material or workmanship
during the Warranty Period, ROSTA shall, at ROSTA's option and cost, repair or
replace the Product. If ROSTA is unable to repair or replace the Product within
a reasonable period, ROSTA shall negotiate in good faith with the customer, an
equitable price reduction under the circumstances. The warranty expires and is
automatically cancelled prematurely if the customer or third party undertakes
modifications or repairs to the Product or if the customer, in case of a
defect, does not immediately notify ROSTA and does not take all appropriate
steps to mitigate the damage and give ROSTA the opportunity to examine the
Product and / or to remedy such defect. There shall be excluded from the
warranty and ROSTA liability any damage caused by improper installation, any
non-compliance with the operation, fitting and / or installation guidelines and
instructions contained in ROSTA's general catalogue ivy the installation
personnel of the customer or of its own customers in the event of resale. There shall be likewise excluded from ROSTA's warranty
and liability for defects, all deficiencies, which cannot be proved to have
their origin in defective material or defective workmanship or which result
from other reasons beyond ROSTA's control. The foregoing expresses ROSTA's sole
warranty and liability and all other claims whatsoever are excluded and,
without limiting the generality of the foregoing, all warranties implied by
statute or law, including, without limitation, any warranty of merchantability or
fitness for a particular purpose are expressly excluded, in no event, shall
ROSTA be liable for any other direct or any indirect, consequential or
incidental damages including , without limitation, damage for loss of business
information, loss of profits, Production interruption and the like.
Title to the delivered goods shall remain with ROSTA until payment in full has been effec te d. The customer hereby acknowledges ROSTA's entitlement and consents to ROSTA's application for registration of the reservation of title to property in the Product and for the registration of all purchase money and other applicable and appropriate security interests to preserve ROSTA's said right until full and complete payment of the purchase price for the Product. The customer hereby grants such security interests and undertakes to execute any further document necessary to give effect to the foregoing and to such security interests and to permit such registration and preservation.
All drawings produced and supplied by ROSTA shall remain ROSTA's property. Reproduction in whole or in part thereof is prohibited. All ROSTA drawings shall not be disclosed or inade accessible to any third parties without ROSTA's prior express written consent.
When executing orders for special custom designs, ROSTA reserves the right to deliver up to 10% above or below the ordered quantityand no cancellation of orders or return of special custom Products will be accepted under any circumstances.
The customer shall inspect the supplied Products within 14 days of delivery, and shall immediately notify ROSTA in writing of any deficiencies. If the customer fails to so inspect and inform ROSTA within the said delay, the supplied Products shall be deemed to have been accepted and to be free of any deficiencies.
These Terms of Sale and Delivery shall be construed and governed in accordance with the laws of the Province of Ontario and the laws of Canada as applicable here in, with the exception of any laws fhere of that would render the laws of any other jurisdiction applicable here to.