a. All orders are accepted and delivered only subject to these Terms and Conditions of Sale. Should there exist a contradiction between the Customer’s and Extrude-A-Trim’s Terms and Conditions of Sale, Extrude-A-Trim’s Terms and Conditions of Sale will govern;
b. Prices are subject to change without notice. All taxes are in addition to the selling price;
c. Extrude-A-Trim means Extrude-A-Trim Inc. and Customer means the purchaser of the goods.
2.Title/Risk of Loss/Insurance
Title to and risk of loss of the goods shall pass from Extrude-A-Trim to Customer when the goods, whether manufactured by Extrude-A-Trim or another, are placed in the possession of the carrier for shipment to Customer. Prior to shipment, Customer shall ensure that the goods are adequately insured from the time the risk of loss passes to Customer and continuously thereafter until all amounts due Extrude-A-Trim are paid in full. Customer grants a security interest in the goods until all unpaid amounts owing to Extrude-A-Trim have been paid.
3. Customer’s Remedy
Extrude-A-Trim’s sole responsibility and liability and Customer’s exclusive remedy shall be limited to the repair or replacement of goods or, at Extrude-A-Trim’s option, return of the goods and refund of moneys paid thereon, without interest. IN NO EVENT SHALL EXTRUDE-A-TRIM BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OR LEGAL FEES. Extrude-A-Trim’s obligation hereunder is subject to receipt of written notice of defect from Customer within thirty (30) days after such alleged defect shall be reasonably apparent to Customer. If the written notice is not given within the prior time period, then remedy of the Customer, whether under these Terms and Conditions or under any other right shall end.
4. Custom Orders
a. “Custom Order” means any goods ordered or manufactured by Extrude-A-Trim for the Customer for the Customer’s specific needs, including but not limited to fabricated material such as anodizing, painting, punching, bending, cutting and/or drilling;
b. All orders of 500 kgs and over are subject to a shipping tolerance of plus or minus 10%. If Customer requests in writing: Do not under ship or other similar words, then the order will be subject to a shipping tolerance of as much as plus 20%. If Customer requests in writing: Do not over ship or other similar words, then the order will be subject to a shipping tolerance of as much as minus 20%. Customer agrees that a shipment within these tolerances is fulfillment by Extrude-A-Trim of the order;
c. The buyer understands that all dies, tools, jigs, machinery and fixtures, are the seller’s property and remain in the seller’s possession even though the buyer is charged for such items. The charge is for the exclusive use of these items only. The seller will maintain these items for a period of 1 year after the completion of the most recent order provided the buyer does not become insolvent, bankrupt, make an assignment to creditors, let its credit account become in arrears or stop making current purchases. After 1 year from completion of the most current order on any particular tool, the seller may destroy or otherwise use these items without reference or accounting to the buyer.
d. The Customer and Extrude-A-Trim agree that the price shall be increased or decreased proportionately within the shipping tolerances;
e. The Customer agrees that any Custom Order cannot be returned and Customer cannot refuse to accept any Custom Order.
5. Delay or Nonperformance
Extrude-A-Trim shall not be liable for failure or delay in its performance hereunder due in whole or in part to strikes, work stoppages, fires, acts of terrorism, accidents, acts, rebellions, civil commotion, public strife, acts of any government whether legal or otherwise, acts of public enemies, force majeure, inability to secure or delay in securing transportation, inability to obtain or delays in obtaining goods, materials, or qualified labor, or any other causes beyond Extrude-A-Trim’s reasonable control including, without limitation, delays or inability to obtain product because of the actions of Extrude-A-Trim supplier.
Customer shall be in default under this Agreement if any of the following occurs:
a. Customer refuses to accept shipment or fails to make any payment when due;
b. Customer dies, ceases to exist, becomes insolvent or the subject of bankruptcy, insolvency, or liquidation proceedings;
c. Any representation, warranty, condition or certification of Customer or any information provided by Customer in or pursuant to this Agreement is false in any material respect when made;
d. Extrude-A-Trim, in good faith, considers that payment or performance of any obligation of Customer to Extrude-A-Trim arising out of this Agreement or any other agreement between Customer and Extrude-A-Trim or any affiliate of Extrude-A-Trim is at risk.
7. Remedies Upon Default
In the event of Customer’s default:
a. Customer shall pay Extrude-A-Trim interest at the rate of 24% per annum on all unpaid amounts and all unpaid amounts shall be immediately due and payable;
b. Extrude-A-Trim may take immediate possession of any of the goods and may suspend or cancel shipments to Customer;
c. Waiver, whether in writing or not, by Extrude-A-Trim of any breach or default shall not constitute a waiver of any subsequent breach or default;
d. Extrude-A-Trim shall be entitled to set off any amount owed by Customer or any of Customer’s related entities against amount owed by Customer or any of Customer’s related entities against any amount owing or to be owed by Extrude-A-Trim to Customer; and
e. Extrude-A-Trim shall have all the rights and remedies provided by law in addition to all other rights as established herein, which rights and remedies shall be cumulative.
EXTRUDE-A-TRIM MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, EXCEPT AS PROVIDED IN WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF EXTRUDE-A-TRIM AND SPECIFICALLY EXCLUDES ALL LEGAL OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Customer shall hold Extrude-A-Trim harmless and indemnify Extrude-A-Trim for any claims arising out of or relating to the design, specification or use of product sold by Extrude-A-Trim.
a. Interest shall be charged at the rate of 24% annually (similar to 2% monthly) on all over due accounts.
b. Dispute Resolution/Governing Law
The validity, construction, and enforcement of this Agreement are covered by the laws of the Province of Ontario, Canada and the parties agree that the Province of Ontario is the sole jurisdiction where any court or other action shall be started. Customer must institute any action against Extrude-A-Trim within one (1) year after Customer’s claim arises, or, subject to applicable law, such claim shall be barred notwithstanding any statutory limitations to the contrary.
c. Extrude-A-Trim may assign its rights and obligations under these Terms and Conditions of sale or any agreement, whether oral or in writing, between the Customer and Extrude-A-Trim, while the Customer may assign its rights and obligations only with the written consent of Extrude-A-Trim.