Terms & Conditions of Sale

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U.S. Terms and Conditions of Sale

Canadian Terms and Conditions of Sale

 

 

 

 

 

 

 

 

 

 

 

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U.S. Terms and Conditions of Sale

General Terms: These terms and conditions (“Terms and Conditions”) herein written shall govern the sale of products to buyer ("Buyer”) and shall supersede all previous communications, agreements or contracts, and no term, condition or trade custom in conflict or inconsistent herewith shall be binding upon seller ("Seller") unless agreed to in writing. Seller’s failure to enforce any right it may have under the Terms and Conditions shall not be construed as a waiver thereof, nor shall such failure or failures be deemed to establish any custom, usage, course of dealing or course of performance.  The failure of Seller to exercise any rights resulting from Buyer’s default or otherwise shall not be deemed a waiver of such right or any other right.  These Terms and Conditions may be enforced at any time, in whole or in part.

 

Payment: Products may require full or partial payment in advance or upon delivery, may require other security for payment or performance, or may impose such other credit or payment terms as Seller deems appropriate in its sole discretion.  Prices are subject to change without notice and the price for the product shall be the prices in effect at the time of shipment. Prices are exclusive of taxes which shall be Buyer’s responsibility (other than taxes on Seller Products including net income or gross receipts).    Buyer may not withhold or set-off payment for products delivered for any reason whatsoever. Seller reserves the right, among other remedies, either to terminate the sale or to suspend future deliveries upon failure of Buyer to make any payment pursuant to these Terms and Conditions or any other contract between the parties hereto. Buyer shall reimburse Seller in full for all damages, costs and expenses, including reasonable attorneys’ fees, which Seller incurs with respect to Buyer’s breach of these Terms and Conditions or any collection efforts by Seller to recover past due amounts from Buyer.

 

Security Interest: If applicable, until all amounts due have been paid in full, Seller hereby retains a security interest in the Product and has all rights of a secured party under the Uniform Commercial Code, including, without limitation, the right to take possession of the Product without legal process and the right to require Buyer to make the Product available to the Seller at a place reasonably convenient to both parties.  At Seller’s request, Buyer shall execute any financing statement or statements submitted by Seller in order that Seller’s security interest in the Product may be perfected.

 

Credit Terms:  If applicable, credit terms are subject to Seller’s continuing approval of Buyer’s credit, and if, in Seller’s sole judgment, Buyer’s credit or financial standing is impaired so as to cause Seller to deem itself insecure, Seller may withdraw the extension of credit and require other payment terms.

 

Shipments/Freight Costs: All shipments are FOB shipping point, unless specifically noted as freight allowed. Shipping and/or delivery dates are estimates only and Seller shall not be liable for any delay or discrepancy in the shipping or delivery of products. Any applicable freight costs will be added to the invoice unless customer specifies collect on purchase order.

 

Back Orders: Seller reserves the right to cancel back orders.

 

Return of Products: Written authorization is required from Seller prior to any return shipment, which may be granted or denied by Seller in its sole discretion. Authorized returns must be shipped using the carrier selected by Seller and routed to the location of Seller’s choice. Buyer is responsible for all freight charges. Returns must be shipped in their original unopened cartons. A minimum 10% re-stocking fee will be charged on all authorized returns. Obsolete, discontinued, and/or merchandise over three months old is not eligible for return in any instance.

 

Claims: Claims resulting from losses, shortages or damage in transit must be acknowledged on the delivery papers at receipt. Buyer shall further promptly notify Seller of any delivery of any damaged product purchased from Seller, or of any complaint whatsoever Buyer may have concerning delivery.  Buyer’s failure to give such notice and to note such damage constitutes a waiver of any claim against Seller relating to the damaged product.

 

Warranty: If applicable, any and all express warranty terms issued by Seller, on product labels or otherwise, supersede the terms herein. Buyer shall contact Seller for complete express warranty details. No claims will be considered until the product in question has been inspected by a Seller representative. All claims for allegedly non-conforming or defective products shall be made by Buyer in writing within fifteen (15) days of receipt of shipment of products, after which the products shall be deemed accepted for all purposes and Seller shall have no liability for same. SELLER MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND DISCLAIMS EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS. The warranty set forth on the product label or otherwise provided shall be void, and shall not apply to any products (i) which have been altered, modified or combined with any other materials other than materials as specified on the products’ labeling, (ii) which have been subject to improper storage or handling, or (iii) which have been exposed to conditions beyond the operating constraints specified by Seller in its labeling.

 

Limited Liability: SELLER SHALL NOT BE LIABLE TO BUYER, BUYER’S CUSTOMERS OR ANY PERSON OR ENTITY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES (INCLUDING, WITHOUT, LIMITATION LOST PROFITS OR BUSINESS INTERRUPTION LOSSES) AS A RESULT OF SUPPLYING PRODUCT TO CUSTOMERS OR OTHERS AND WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE. IN NO EVENT SHALL SELLER BE LIABLE FOR DAMAGES TO PROPERTY, OR FOR DEATH, DISABILITY OR OTHER INJURIES TO PERSONS, ARISING OUT OF THE USE OF ITS PRODUCTS, INCLUDING ANY PRODUCT WHICH WAS NOT KEPT OUT OF THE REACH OF CHILDREN AND ANIMALS. SELLER’S EXCLUSIVE LIABILITY AND BUYER'S SOLE REMEDY IN THE EVENT OF A NON-CONFORMING PRODUCT SHALL BE REPLACEMENT OF THE DEFECTIVE PRODUCT WITH CONFORMING PRODUCT. IN NO EVENT SHALL SELLER’S TOTAL LIABILITY EXCEED THE PURCHASE PRICE OF THE NON-CONFORMING PRODUCT.

 

Availability: Certain products may not be available in your area due to federal, state or local regulations.

 

Force Majeure:  Seller shall not be liable for any failure or delay in performance with respect to delivery or otherwise, if such failure or delay is due to an act of God, war, civil disturbance, riot, labor difficulties, factory capacity, fire, other casualty, accident, inability to obtain containers or raw materials, supplier’s failure or inability to perform, governmental acts or restrictions, including shutdowns and inability to perform due to pandemics, or any other cause of any kind whatever beyond the reasonable control of Seller. Seller shall have the right at its option and without liability to apportion its supply of product among its customers, including its affiliated divisions and companies, in such a manner as Seller, in its sole discretion, believes equitable. In no event shall Seller be obligated to purchase products from others in order to enable it to deliver products to Buyer.

 

Indemnity: Buyer shall assume full responsibility for the use of the products and shall defend, indemnify and hold harmless Seller and its respective affiliates, officers, directors, shareholders, employees, agents and representatives from and against any and all losses, liabilities, claims, damages, demands, costs and expenses (including without limitation attorneys' fees and court costs) arising out of or relating to same.

 

Governing Law: All sales are governed by the laws of the country, state, province, or territory identified in the address for Seller on the invoice, without application of conflict of law principles and Buyer irrevocably and unconditionally submits to the exclusive jurisdiction of the country, provincial or territorial courts in the country, province or territory of the location of the Seller’s headquarters and waives to the fullest extent possible any defense of any inconvenient forum to the maintenance of such action or proceeding. THE PARTIES KNOWINGLY AND WILLINGLY WAIVE ANY RIGHT THEY HAVE UNDER APPLICABLE LAW TO A TRIAL BY JURY IN ANY DISPUTE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS AND CONDITIONS OR THE ISSUES RAISED BY THAT DISPUTE. The United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended, shall not apply to the Contract.

 

Compliance with Applicable Law: Buyer shall comply with all applicable laws and regulations, including but not limited to, the Foreign Corrupt Practices Act, the anti-money laundering provisions of the USA Patriot Act and Bank Secrecy Act, and United States export control laws. Buyer shall not sell, export, re-export, transmit, divert or otherwise transfer any goods or products into or through Cuba, Iran, Sudan, Syria, North Korea, Crimea or any other prohibited jurisdiction, or with or to any party listed on any United States Government or European Union blocked-persons list, as amended from time to time.

 

No License:  Nothing in these Terms and Conditions is intended or shall be construed to grant any license or other permission by Seller to Buyer to use any trademarks, trade names, copyrighted materials, patents or other intellectual property rights or interest of Seller at any time.

 

Entire Agreement:  These Terms and Conditions represent the entire agreement between the parties hereto, and there are no understandings, representations, or warranties of any kind except those expressly set forth herein.

 

 

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Canadian Terms and Conditions of Sale

General Terms: These terms and conditions (“Terms and Conditions”) herein written shall govern the sale of products (“Product(s)”) to you, the buyer ("Buyer”) and shall supersede all previous communications, agreements or contracts, and no term, condition or trade custom in conflict or inconsistent herewith shall be binding upon Tremco Canada Division, RPM Canada as seller ("Seller") unless agreed to in writing. Seller’s failure to enforce any right it may have under the Terms and Conditions shall not be construed as a waiver thereof, nor shall such failure or failures be deemed to establish any custom, usage, course of dealing or course of performance.  The failure of Seller to exercise any rights resulting from Buyer’s default or otherwise shall not be deemed a waiver of such right or any other right, remedy, or power arising pursuant to these Terms and Conditions.  These Terms and Conditions may be enforced at any time, and from time to time, in whole or in part.

 

Payment: As a condition of delivery of Products, the Seller may: (i) require full or partial payment in advance or upon delivery, (ii) require security or the perfection of a security interest for payment or performance, or (iii)require and impose such other credit or payment terms as Seller deems appropriate in its sole discretion. Prices are subject to change without notice and the price for the Product shall be the price(s) in effect at the time of shipment. Prices are exclusive of all applicable taxes, including without limitation all harmonized sales tax, goods and services tax, provincial sales tax, value added tax, use and excise taxes, and any other similar taxes, duties and charges of any kind, which shall be Buyer’s responsibility (other than taxes on Seller profit, including net income or gross receipts).  Buyer shall pay all invoiced amounts due to Seller within thirty (30) days from the date of Seller's invoice. Buyer shall make all payments hereunder in the currency invoiced. To the extent Buyer qualifies for a discount for prompt payment, the discount shall be applied to the invoice total less any applicable taxes.  Buyer may not withhold or set-off payment for Products delivered for any reason whatsoever. Seller reserves the right, among other remedies, either to terminate the sale or to suspend future deliveries upon failure of Buyer to make any payment pursuant to these Terms and Conditions, or any other contract between the parties hereto. Buyer shall reimburse Seller in full for all damages, costs and expenses, including reasonable legal and other professional fees and disbursements, which Seller incurs with respect to Buyer’s breach of these Terms and Conditions or any collection efforts by Seller to recover past due amounts from Buyer.

 

Security Interest: If applicable, until all amounts due have been paid in full, Buyergrants Seller  a security interest in the product, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing, wherever located, and Seller shall have all the rights, title and interest of a secured party under the Personal Property Security Act (Ontario), and other similar applicable legislation in other provinces and territories , including, without limitation, the right to take possession of the product without legal process and the right to require Buyer to make the product available to the Seller at a place reasonably convenient to both parties.  At Seller’s request, Buyer shall execute any financing statement or or other statements and do all other acts necessary to give effect to the registration and perfection of the Seller’s security interest in the Products. Any such security interest shall constitute a purchase money security interest under the Personal Property Security Act (Ontario), or other similar legislation, as applicable.

 

Credit Terms:  If applicable, credit terms are subject to Seller’s continuing approval of Buyer’s credit, and if, in Seller’s sole judgment, Buyer’s credit or financial standing is impaired so as to cause Seller to deem the credit unacceptable, in the Seller’s sole discretion, Seller may withdraw the extension of credit and require other payment terms.

 

Shipments/Freight Costs: All shipments are FOB shipping point, unless specifically noted as freight allowed. Shipping and/or delivery dates are estimates only and Seller shall not be liable for any delay or discrepancy in the shipping or delivery of Products. Any applicable freight costs will be added to the invoice unless Buyer specifies collection on purchase order. Title and risk of loss passes to Buyer upon delivery of the Products at the designated delivery point, as determined by the Seller.

 

Back Orders: Seller reserves the right to cancel back orders, upon notice to the Buyer, from time to time in the Seller’s sole discretion and without liability.

 

Quantity: If Seller delivers to Buyer a quantity of Products of up to ten percent (10%) more or less than the quantity set forth in the applicable sale document(s), Buyer shall not be entitled to object to or reject the Products or any portion of them by reason of the surplus or shortfall and shall pay for such Products the price set forth in the applicable invoice(s) adjusted pro rata.[is this correct?]

 

Non-Delivery: The Seller shall not be liable for any non-delivery of Products (even if caused by Seller's negligence) unless Buyer gives written notice to Seller of the non-delivery within ten (10) days of the date when the Products would in the ordinary course of events have been received. Any liability of Seller for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered. Buyer acknowledges and agrees that the remedies set forth in this section are Buyer's exclusive remedies for the non-delivery of Products.

 

Return of Products: Written authorization is required from Seller prior to any return shipment of Product, which may be granted or denied by Seller in its sole discretion. Authorized returns must be shipped using the carrier selected by Seller and routed to the location of Seller’s choice. Buyer is responsible for all freight charges and applicable duties and/or taxes. Returns must be shipped in their original unopened cartons. A minimum 15% re-stocking fee will be charged on all authorized returns. Obsolete, discontinued, and/or merchandise over six months old shall not be eligible for return.

 

Claims: Claims resulting from losses, shortages or damage in transit must be acknowledged by the Buyer on the delivery papers at receipt. Buyer shall further promptly notify Seller of any delivery of any damaged Product purchased from Seller, or of any complaint whatsoever Buyer may have concerning delivery, within ten (10) days of receipt of Product(s).  Buyer’s failure to give such notice and to note such damage constitutes a waiver of any claim against Seller relating to the damaged Product and Buyer shall be deemed to have accepted same.

 

Warranty: If applicable, any and all express warranty terms issued by Seller, on Product labels or otherwise, supersede the Terms and Conditions herein. As applicable, Buyer shall contact Seller for complete express warranty details. No claims will be considered until the applicable Product has been inspected by a Seller representative. Any and all claims for alleged non-conforming or defective Products shall be made by Buyer in writing within ten (10) days of receipt of shipment of Products, after which the Products shall be deemed accepted for all purposes and Seller shall have no liability for same. SELLER MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, AND DISCLAIMS EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO THE PRODUCT(S). The warranty set forth on the Product label or otherwise provided shall be void, and shall not apply to any Products: (i) which have been altered, modified or combined with any other materials other than materials as specified on the Products’ label, (ii) which have been subject to improper use, storage or handling, or (iii) which have been exposed to conditions beyond the operating constraints specified by Seller in its Product labeling.

 

Limited Liability: SELLER SHALL NOT BE LIABLE TO BUYER, BUYER’S CUSTOMERS OR ANY PERSON, THIRD PARTY OR ENTITY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES (INCLUDING, WITHOUT, LIMITATION LOST PROFITS OR REVENUES, DIMINUTION IN VALUE, OR BUSINESS INTERRUPTION LOSSES) ARISING OUT OF OR AS A RESULT OF THE SELLER SUPPLYING PRODUCT TO BUYER, BUYER’S CUSTOMERS OR OTHER THIRD PARTIES OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF ANY LEGAL OR EQUITABLE THEORY, AND WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE. IN NO EVENT SHALL SELLER BE LIABLE FOR DAMAGES TO PROPERTY, OR FOR DEATH, DISABILITY OR OTHER INJURIES TO PERSONS, ARISING OUT OF THE USE OF THE PRODUCT(S), INCLUDING ANY PRODUCT WHICH WAS NOT KEPT OUT OF THE REACH OF CHILDREN AND ANIMALS. SELLER’S EXCLUSIVE LIABILITY AND BUYER'S SOLE REMEDY IN THE EVENT OF A NON-CONFORMING PRODUCT SHALL BE REPLACEMENT OF THE DEFECTIVE PRODUCT WITH CONFORMING PRODUCT. IN NO EVENT SHALL SELLER’S TOTAL LIABILITY EXCEED THE PURCHASE PRICE OF THE NON-CONFORMING PRODUCT.

 

Availability: Certain products may not be available in your area due to federal, state, provincial, or local regulations.

 

Force Majeure:  Seller shall not be liable for any failure or delay in performance with respect to delivery or otherwise, if such failure or delay is due to an act of God, war, civil disturbance, riot, labor difficulties, factory capacity, fire, other casualty, accident, inability to obtain containers or raw materials, supplier’s failure or inability to perform, governmental acts or restrictions, including shutdowns and inability to perform due to pandemics, public health emergencies, or any other cause of any kind whatever beyond the reasonable control of Seller. Seller shall have the right at its option and without liability to apportion its supply of product among its customers (and the Buyer), including its affiliated divisions and companies, in such a manner as Seller, in its sole discretion, believes equitable. In no event shall Seller be obligated to purchase products from others in order to enable it to deliver products to Buyer.

 

Indemnity: Buyer shall assume full responsibility for the use of the Products and shall defend, indemnify and hold harmless Seller and its respective affiliates, officers, directors, shareholders, employees, agents and representatives from and against any and all losses, liabilities, claims, damages, demands, costs and expenses (including without limitation legal and other professional fees and court costs) arising out of or relating to the Seller’s supply of and the Buyer’s use of the Product(s).

 

Governing Law: All sales are governed by the laws of the country, state, province, or territory identified in the address for Seller on the invoice, without application of conflict of law principles and Buyer irrevocably and unconditionally submits to the exclusive jurisdiction of the country, provincial or territorial courts in the country, province or territory of the location of the Seller’s headquarters and waives to the fullest extent possible any defense of any inconvenient forum to the maintenance of such action or proceeding. THE PARTIES KNOWINGLY AND WILLINGLY WAIVE ANY RIGHT THEY HAVE UNDER APPLICABLE LAW TO A TRIAL BY JURY IN ANY DISPUTE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS AND CONDITIONS OR THE ISSUES RAISED BY THAT DISPUTE. The United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended, shall not apply to these Terms and Conditions or the related contract for the sale and delivery of Product.

 

Compliance with Applicable Law: Buyer shall comply with all applicable laws and regulations, including but not limited to, the Foreign Corrupt Practices Act, the anti-money laundering provisions of the USA Patriot Act and Bank Secrecy Act, and United States and Canadian export control laws, as applicable. Buyer shall not sell, export, re-export, transmit, divert or otherwise transfer any goods or products into or through Cuba, Iran, Sudan, Syria, North Korea, Crimea or any other prohibited jurisdiction, or with or to any party listed on any United States Government, Canadian, or European Union blocked-persons list, as amended from time to time.

 

No License:  Nothing in these Terms and Conditions is intended or shall be construed to grant any license or other permission by Seller to Buyer to use any trademarks, trade names, copyrighted materials, patents or other intellectual property rights or interest of Seller at any time.

 

Severability: If any term or provision of these Terms and Conditions is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.

 

Survival: Provisions of these Terms and Conditions which by their nature should apply beyond their terms will remain in force after any termination or expiration of any agreement between the Buyer and Seller, including, but not limited to, the following provisions: Warranty, Limited Liability, Indemnity, Governing Law, Compliance with Applicable Law, Severability and Survival.

 

Entire Agreement:  These Terms and Conditions represent the entire agreement between the parties hereto, and there are no understandings, representations, or warranties of any kind except those expressly set forth herein.