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, notwit hstanding 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. (hereina fter " 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 info rmation 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 maje ur e, acts or inaction of any gover nmenta l author ity, 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 sha ll not be entitled to claim any dama ges for delayed delivery un less such delay is clearly estab lished 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 s uch invoice price. The aforesaid amo unt shall constitute liquidat ed 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. Custo mers 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 a nd obtain such air freighted shipment, and, in addition to a $75.00 service fe e.
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 P!!riod"). Where delivered goods are established to be defective in material or wor kmansh ip 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 sha ll negotiate in good faith with the customer, an equitabll' price reduction under the circumstances. The warranty expires and is au tomatically 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 liabi lity 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 iay the inst a llation personnel of the customer or of its own customer-s in the event of resale. There shall be likewise excluded from ROSTA's warranty and liability for defects, all deficiencies, which canhot 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 merchantab ility or fitness for a particular purpose are expressly excluded , 1n no event , shall ROSTA be liable for any other direct or any indirect, conse quential or incidental damages including , without limitation , damage for loss of busi ness 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 reserv a tion of title to property in the Product and for the registration of all purchase money and other applicable and appropr iate security interes ts to preserve ROSTA's said right until full and complete payment of the purchase price for the Produ ct. The customer hereby grants such security interests and undertakes to execute any further document necessary to give effect }o the foregoing and to such security interests and to permit such registration and preservation.
All drawin gs produced and supp lied by ROSTA shall remai n 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 co nsent.
When executing orders for special custom designs, ROSTA reserves the right to deliver up to 10% above or below the ordered q rnntity and no cancellation of orders or return of specia l custom Products will be accepted under any circumsta nces.
The customer shall inspect the supplied Produ cts within 14 days of de livery, and sha ll immediately notify ROSTA in writing of any de ficiencies. If the customer fails to so inspect and inform ROSTA w ithin the sa id 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 Ca nada as app licable h e rein, wit h the exception of any laws fh e reof th at wo uld render the laws of any other jurisdiction app licable hereto.