RB&W Corporation of Canada

Terms and Conditions of Sale

1. Orders and Acceptance. All orders for products and/or services are subject to RB&W’s acceptance. Unless otherwise agreed to in writing by RB&W and Buyer, all sales transactions are expressly limited to the terms and conditions set forth below. ALL TERMS AND CONDITIONS (INCLUDING BUT NOT LIMITED TO ADDITIONAL AND/OR DIFFERENT TERMS AND CONDITIONS) CONTAINED IN ANY OF BUYER’S PURCHASE ORDERS OR OTHER DOCUMENTS SUBMITTED BY BUYER ARE EXPRESSLY REJECTED AND SHALL NOT BE BINDING ON RB&W UNLESS AGREED TO IN WRITING BY A RB&W CORPORATE OFFICER. BUYER’S ACCEPTANCE OF SHIPMENT AND/OR PAYMENT FOR THE GOODS CONSTITUTES ACCEPTANCE OF RB&W’S TERMS AND CONDITIONS. NO WAIVER OF THESE TERMS AND CONDITIONS OR ACCEPTANCE OF OTHER TERMS AND CONDITIONS SHALL BE CONSTRUED FROM RB&W’S FAILURE TO OBJECT TO THE SAME. ALL SALES ARE FINAL. GOODS CANNOT BE RETURNED WITHOUT RB&W’S PRIOR WRITTEN CONSENT.
2. Quotations and Published Prices. All written quotations shall automatically expire on the expiration date listed on the quotation, but in no event later than ninety (90) days after issuance, and are subject to withdrawal by notice within that period. RB&W, at its sole option, may extend the effective date of written quotations up to six months. Prices shown on published price lists and other literature issued by RB&W do not represent unconditional offers to sell, and are subject to change without notice. RB&W’s prices do not include installation or final on-site adjustment. Prices are subject to adjustment by RB&W due to changes in raw materials prices or currency exchange fluctuations.
3. Prepayment. In the event that RB&W, in its sole discretion, deems Buyer’s financial condition unsatisfactory, RB&W may require full or partial payment in advance. Upon Buyer’s failure to submit full or partial payment upon request, RB&W may cancel or delay any or all orders and adjust those prices in effect at the time of delayed shipment.
4. Terms of Payment. Payment terms are net thirty (30) days from the date of RB&W’Ss invoice, unless otherwise expressly stated on RB&W’Ss invoice. Amounts past due are subject to a service charge of 1.5% per month (or fraction thereof) or the maximum rate permitted by law.
5. Taxes. RB&W’s prices do not include federal, state, or local taxes, including sales, use, property, import/export, value added, excise or similar tax payments. RB&W shall bill as a separate invoice line item all such taxes and Buyer agrees to pay and/or reimburse RB&W for any such applicable taxes.
6. Substitutions. RB&W reserves the right to substitute the latest superseding design and manufactured equivalent product.
7. Order Changes. Requested changes to product orders are subject to RB&W’s approval and acceptance. Buyer shall reimburse RB&W for all additional costs and expenses related to any such change, including, without limitation, purchase of RB&W’s inventory of any products made obsolete by any change.
8. Cancellation. Buyer’s cancellation of any standard, off-the-shelf product order is subject to RB&W’s receipt of Buyer’s prior written notice not less than thirty (30) days before any product is shipped. In the event of any whole or partial cancellation of any standard product order or services order by Buyer, Buyer shall pay to RB&W the reasonable costs and expenses (including engineering expenses and all commitments to suppliers and subcontractors) incurred by RB&W prior to RB&W’s receipt of the cancellation notice plus RB&W’s usual rate of profit for similar work on the portion of the order canceled. Orders for non-standard catalog numbers and special items made to Buyer’s prints or specifications are final and non-cancelable.
9. Shipping. Products shall be shipped EX WORKS (Incoterms 2010) RB&W’s facility. Title to the products shall pass to Buyer at such time as all amounts due to RB&W hereunder are paid in full by Buyer. Risk of loss or damage to the products shall pass to Buyer upon RB&W’s delivery of the products to a carrier. RB&W’s prices do not include shipping charges. Unless any order is marked “Ship Complete” RB&W may make partial shipments in its discretion. Partial shipment of an order will not constitute acceptance of an entire order. RB&W reserves the right to use its own discretion in the manner and routing of shipments.
10. Delivery/Access. All delivery/performance dates indicated on RB&W’s documents are approximate and shall not be deemed to represent fixed or guaranteed delivery dates, and are based upon the prompt receipt of all necessary information from Buyer regarding products and/or services ordered. If any shipment or delivery shall be delayed through any act or neglect of the carrier or any other person, including sub-contractors and suppliers, or by any other labor difficulties, shortages of or inability to obtain shipping space or transportation, RB&W shall not be responsible therefor. RB&W will use reasonable efforts to meet the indicated delivery/performance dates but shall not be held responsible for its failure to do so. In the event of any delivery delay caused by Buyer, RB&W will store and handle all products ordered at Buyer’s risk and will invoice the Buyer for the unpaid portion of the contract price plus storage, insurance and handling charges on or after the date on which the products are ready for delivery. Buyer grants to RB&W and its subcontractors the authority to enter the property upon which RB&W’s services are to be performed. In the event that existing conditions attributable to Buyer cause an increase in RB&W’s costs pertaining to the provision of services, then Buyer shall reimburse RB&W for such increased costs.
11. Security Interest. Until such time as RB&W is fully paid for product shipped, Buyer shall grant to RB&W a purchase money security interest in the products. Buyer will assist RB&W in taking necessary action to protect RB&W’S security interest.
12. Default. Upon placing this instrument with an attorney for collection of past due payments or repossession of product, Buyer shall reimburse RB&W for attorney’s fees, court costs, and other expenses incurred by RB&W to enforce the terms and conditions stated herein.
13. Warranty. THIS WARRANTY CONTAINS RB&W’S SOLE LIABILITY AND BUYER’S SOLE AND EXCLUSIVE REMEDIES AND IS EXPRESSLY IN LIEU OF ALL OTHER REMEDIES BASED IN LAW OR EQUITY. (a) Products. RB&W warrants to Buyer that products sold by RB&W shall be free from defects in material and workmanship for a period of one (1) year from shipment date. (b) Services. RB&W warrants to Buyer that services performed by RB&W shall be performed in a good and workmanlike manner, consistent with industry standards; (c) Buyer’s Exclusive Remedy. If RB&W’s products or services fail to meet their respective warranty standard as set forth in this section 13, RB&W will at its sole option either: (1) refund the amount received by RB&W for defective products or services, or (2) replace any defective product free of charge, or (3) re-perform services of the type originally performed free of charge. The foregoing is contingent upon RB&W receiving Buyer’s written notice no later than five days following the expiration of the warranty period and Buyer returning defective products (CIF (Incoterms 2010) to a location specified by RB&W). In the event RB&W determines the return of the product to be uneconomical, RB&W will either dispatch a service technician to the site to repair the product, or authorize the product to be scrapped, as appropriate. (d) Warranty Exclusions. The warranty set forth herein does not extend to any product or service which has been misused, modified, or repaired, improperly, installed or otherwise abused. (e) Limitation of Warranties. (1) EXCEPT AS PROVIDED IN THIS SECTION, RB&W MAKES NO WARRANTY, EXPRESS OR IMPLIED INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
14. Patents. (a) RB&W’s Indemnity. RB&W will defend or settle at its own expense any suit or action which may be brought against Buyer for alleged infringement of any U.S. patent or U.S. copyright of third parties by reason of Buyer’s proper use of RB&W’s products and will indemnify and hold Buyer harmless from and against all damages and costs which may be adjudged or decreed against Buyer on account of such infringement in any such suit or action and actually paid by Buyer; provided, however, that Buyer shall have given prompt written notice to RB&W of any actual or threatened claim, suit or action of such alleged infringement and shall permit RB&W to have full control over the defense or settlement of the same; and provided further, that Buyer shall not settle or compromise any such suit or action without the prior written consent of RB&W. In the event that the use of any product is enjoined, RB&W shall, at its sole option and at its own expense, either (1) procure for the Buyer the right to continue using such product, or (2) replace the same with non-infringing products, or (3) modify the same to become non-infringing, or (4) refund the associated amount paid by Buyer to RB&W for such products. (b) Disclaimer/Limitation. Notwithstanding the foregoing, RB&W shall not be liable for any damages or costs arising from an alleged infringement resulting from the use of product provided by RB&W pursuant to prints, specifications or drawings provided by Buyer or any third party. The remedies set forth in this Section 14 shall constitute Buyer’s sole and exclusive remedy and RB&W’s sole liability in connection with alleged infringement of any third party intellectual property rights. (c) Buyer’s Indemnity. If RB&W provides any products pursuant to any design, drawing, specification or bill of material furnished to RB&W by or on behalf of Buyer, and if any claim, demand action or proceeding is made or commenced against RB&W for any purpose arising out of that design or which alleges that the manufacturer or the use, sale or other disposition of such Part constitutes infringement or contributory infringement, of any patent or other intellectual property right, Buyer shall indemnify RB&W with respect to any and all loss, cost, damage or expense which RB&W may suffer or incur by reason of such claim demand, action or proceeding including but not limited to, all RB&W’S reasonable attorney’s fees and other costs of defense and the amount of any judgment entered in any such action or proceeding.
15. Indemnity. RB&W shall indemnify and hold harmless Buyer, its officers, directors, employees, agents, representatives and customers from any and all third-party claims, damages, losses or expenses (including reasonable attorney’s fees, and amounts paid in settlements) for claims or suits for personal injury or death or property damages, to the extent such injury, death or damage is directly caused by the defective product supplied by RB&W. Buyer shall indemnify and hold harmless RB&W, its affiliated companies and their respective officers, directors, employees, agents, representatives, subcontractors and suppliers from any and all third-party claims, damages, losses or expenses (including reasonable attorney’s fees, and amounts paid in settlements) for claims or suits for personal injury or death or property damages, to the extent such injury, death or damage is caused by Buyer’s design of the products, or any negligence or intentional misconduct of Buyer. RB&W shall not be subject to any liability, whether based in contract, warranty, tort (including negligence and strict liability) or otherwise arising out of assistance or advice provided by RB&W which is not expressly provided for in RB&W’S quotation and Buyer’s order. Any suit arising hereunder must commence within one (1) year from the date of the cause of action.
16. Limitation of Liability. RB&W SHALL NOT BE LIABLE FOR ANY LOSS, CLAIM, EXPENSE OR DAMAGE CAUSED BY, CONTRIBUTED TO OR ARISING OUT OF THE ACTS OR OMISSIONS OF BUYER OR THIRD PARTIES, WHETHER NEGLIGENT OR OTHERWISE. IN NO EVENT SHALL RB&W’S LIABILITY FOR ANY CAUSE OF ACTION WHATSOEVER EXCEED THE COST OF THE PRODUCT GIVING RISE TO THE CLAIM, WHETHER BASED IN CONTRACT, WARRANTY, INDEMNITY OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. IN NO EVENT SHALL RB&W BE LIABLE TO BUYER FOR ANY SPECIAL, INCIDENTAL, OR OTHER SUCH INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUES, PROFITS OR OPPORTUNITIES), WHETHER ARISING OUT OF OR AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
17. Insurance. Each of Buyer and RB&W shall maintain the following types and amounts of insurance coverage: (a) worker’s compensation: statutory requirements, (b) employer’s liability: One Million Dollars per occurrence, (c) Comprehensive Liability (personal injury and product liability): One Million Dollars combined single limit per occurrence. Each party shall provide a certificate of insurance to the other upon receiving a written request to do so. Insurance coverage shall not be canceled or materially modified without 30 days prior written notice. Should any damage or loss occur for which a claim is made under RB&W’s insurance, the parties agree to allocate payment of the policy deductible in accordance with the respective degrees of fault, following standard comparative negligence principles.
18. Force Majeure. RB&W shall not be liable for any delay or failure to perform to the extent caused by (including but not limited to) fire; flood; explosion; war, acts of terrorism, riot; embargo; labor disputes; compliance with any laws, regulations, orders, acts or requirements from the government, civil or military authorities; acts of God or the public enemy, or any act or event of any nature reasonably beyond the reasonable control of RB&W.
19. Waiver. No condoning, excusing or waiver by any party of any default, breach or nonobservance by any other party, at any time or times with respect to any covenants or conditions set forth herein shall operate as a waiver of that party's rights with respect to any continuing or subsequent default, breach or nonobservance, and no waiver shall be inferred from or implied by any failure to exercise any rights by the party having those rights.
20. Severability. Should any provision of these terms and conditions be declared by any court of competent jurisdiction to be invalid or unenforceable, the remaining provisions shall not be affected thereby, it being the intent of the parties that they would have executed the remaining portion without including any such part or portion which may for reason be declared invalid.
21. Governing Law. The interpretation and enforcement of these Terms and Conditions of Sale shall be governed by and construed in accordance with the laws of the State or Province where RB&W is located (excluding its conflict of laws provisions), including the provisions of the UCC or its equivalent in the State or Province. Any proceeding pertaining to any such claim shall be venued in the city where RB&W is located. The United Nations Convention on Contracts for the International Sale of Goods will not apply.
22. Entire Agreement/Amendment. RB&W and Buyer agree that the terms and conditions set forth herein constitute their complete and exclusive agreement regarding the subject matter of Buyer’s order and RB&W’s supply of products and/or services, and supersede any prior communications, representations or agreements of the parties, whether oral or written and cannot be altered, amended, or modified except in writing executed by an authorized representative of each party. No course or prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any term used herein.
23. Assignability. Neither party may sell, assign, or transfer its rights, duties, or obligations under these Terms and Conditions of Sale without the prior written consent of the other; provided, however, that RB&W reserves the right to (a) assign its rights, duties and obligations to any party purchasing substantially all of RB&W’s assets and (b) subcontract the manufacture of products. To the extent that assignment is permitted, these Terms and Conditions of Sale shall inure to the benefit of and be binding upon each party and its permitted successors and assigns.
24. Confidentiality. As part of the business relationship between Buyer and RB&W, either Buyer or RB&W may come into possession of information or data that constitutes non-publicly known trade secrets, know-how, confidential information or data or are otherwise considered confidential or proprietary by the other party including, without limitation, pricing, financial condition, delivery capabilities, and technologies (“Confidential Information”). Buyer and RB&W each agrees to maintain such Confidential Information in the utmost of confidence; to use such Confidential Information solely in connection with such business relationship; and to take all measures necessary to protect such Confidential Information from disclosure to third parties. The obligations set forth herein shall survive termination or expiration of these Terms and Conditions of Sale. Each party shall be responsible for any breach of this provision by its officers, directors, affiliates, employees, agents and representatives. Nothing in these Terms and Conditions of Sale shall operate to require the disclosure of any Confidential Information from one party to the other, including, without limitation, the identity of any of RB&W’s suppliers (who are not Buyer-directed suppliers) and any prints or drawings of parts developed solely by RB&W.
25. Headings. Captions or headings are inserted only for convenience and shall not be construed as part of the foregoing terms and conditions or as a limitation upon the scope of the particular section to which they refer.
26. Termination. Either party may terminate the order to which these Terms and Conditions of Sale applies by one hundred eighty (180) days written notice to the other party. Upon termination of the order, Buyer shall purchase any remaining inventory of products which were ordered by RB&W in accordance with Buyer’s forecasts or historical usage.
27. Compliance with Laws. Some of these products may be imported and if resold or repacked by Buyer must conform to the requirements of 19 U.S.C. 1304 and 19 C.F.R. Part 134. Each of RB&W and Buyer shall at all times comply with all federal, state and local laws, ordinances, regulations and orders that are applicable to the operation of its business. Without limiting the generality of the foregoing, each party shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses and permits necessary to conduct its business.