We thank you for your order. All quotations or sales by Promark Electronics (hereafter “Promark” are subject to the terms and conditions as set forth, and in addition to those of the front of this document. We appreciate your trust and we will do our best to provide you with top quality service. Our conditions of sale are the following:
TERMS AND CONDITIONS
1. Purchase Terms
The terms and conditions set forth in this order-slip or bill-slip constitutes the entire agreement concerning the sale and purchase of the goods (“Products”) covered hereby. No statement description, warranty, guarantee condition or recommendation contained in any catalogue, price list, advertisement or communication or made verbally by any of the agents or employees of Promark shall be construed to enlarge, vary or override in any way thereof any of these conditions.
This agreement supersedes all prior and contemporaneous agreements or understandings, inducements or conditions, express or implied, written or oral, between the parties with respect to the subject matter hereof, including without limitation any purchase orders or similar documents heretofore or hereafter submitted by the Customer with respect to the purchase of any Products.
Without limiting the foregoing, the purchase and sale of Products hereunder is expressly conditioned upon the Customer’s agreement to the terms and conditions herein contained. Acceptance by Customer is limited to and conditioned upon Customer’s assent to these terms and conditions. Neither Promark’s commencement of performance or delivery shall be deemed or constituted as acceptance of Customer’s supplemental or conflicting terms and conditions. Payment of a deposit or of the purchase price in full or acceptance of the Products by Customer shall constitute such agreement without any further action or execution of any writing by the Customer. THESE TERMS AND CONDITIONS MAY ONLY BE WAIVED OR MODIFIED IN A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF PROMARK.
All Products are sold as non-cancellable and non-returnable (NCNR) as they are custom in nature, intended for a specific customer and a specific purpose.
Except as otherwise stated, the terms of payment are Net 30 days from the invoice date. Purchaser may not set off any amounts owing to Promark.
Purchase price is payable by a cheque, wired transfer, cash or in advance with the use of a credit card. If the Customer fails to make payment as required, Promark may suspend the delivery of the shipment, or any further shipment until payment is made in full.
Promark reserves the right to establish and/or change credit and payment terms extended to Customer when, in Promark’s sole opinion, Customer’s financial condition or previous payment record warrants such action. Further, on delinquent accounts, Promark shall not be obligated to continue performance under any agreement with Customer.
3. Approval of order
The order will only be binding from the moment that the order acknowledgment has been approved by Promark or any other duly authorized person.
The prices of the Products are those specified on the front of Promark’s invoice. Pricing for undelivered Product may be increased in the event of any increase in Promark’s cost, change in market conditions or any other causes beyond Promark’s reasonable control. Price quotations, unless otherwise stated, shall automatically expire thirty (30) calendar days from the date issued and may be cancelled or amended within that period upon notice to Customer.
Unless otherwise agreed to in writing by Promark, all prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including, but not limited to, federal, state, provincial and local sales, excise, value added, goods and services taxes and any other taxes. Customer agrees to pay these taxes unless Customer has provided Promark with an exemption resale certificate in the appropriate form for the jurisdiction of Customer’s place of business and any jurisdiction to which Products are to be directly shipped hereunder, or unless the sale is otherwise exempt from these taxes. Customer agrees to indemnify and hold Promark harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation and taxes shall appear as separate items on Promark’s invoice.
5. Credit Approval
Shipment, delivery and performance of all work hereunder are subject to the approval of Promark’s credit department. Promark may at any time decline to make any shipment or delivery or perform any work except upon receipt of payment in advance or upon such other payment terms as are acceptable to Promark’s credit department.
6. Delay for delivery
The Products will be delivered in approximately the delay as quoted and specified on the order acknowledgment.
7. Shipment and Delivery
Deliveries of Products, title (subject to any lawful reservation of Promark’s security interest) and risk of loss pass to Customer EXW Promark’s facility per INCOTERMS 2010. Customer is responsible for all demurrage or detention charges. Any claims for shortages or damages suffered in transit must be submitted directly to the carrier. All shipping dates are approximate and not guaranteed. Promark reserves the right to make partial shipments. Promark is not bound to tender delivery of any Products for which Customer has not provided shipping instructions. If shipment of Products is postponed or delayed by Customer for any reason, including a Force Majeure Event, Promark may move Products to storage for the account of and at the risk of Customer and the Products will be deemed delivered. Products may not be returned except with the prior written consent of Promark, which may include additional terms.
Promark will not be liable for any failure in performance of delivery of shipment of Products or for any damages suffered by the Customer by reason of such failure or delay when the reason for such failure or delay is beyond Promark’s control or not.
If Promark believes in good faith that Customer’s ability to make payments may be impaired or if Customer shall fail to pay any invoice when due, Promark may suspend delivery of any order or any remaining balance thereof until such payment is made or cancel any order or any remaining balance thereof, and Customer shall remain liable to pay for any Products already ordered by Customer.
8. Inspection and Acceptance
Unless otherwise agreed in writing signed by Promark, Customer shall inspect Products upon receipt at the first delivery destination. Customer’s failure to inspect Products and give written notice to Promark of any alleged defects or non-conformity within ten (10) days after receipt at first delivery destination shall constitute Customer’s irrevocable acceptance of Products delivered. Notice of any latent defect must be delivered to Promark in writing within ten (10) days of start-up.
No returns may be made without a Return Material Authorization (RMA) form issued by Promark. If the Customer refuses to accept delivery or returns any Products without an RMA, then such Products shall be held for twenty (20) days after which the item may be disposed of at Promark’s discretion without crediting the Customer’s account.
9. Non-liability – Force majeure
Notwithstanding any other provision herein contained or contained in the order-slip or bill-slip, Promark shall not be held liable for any loss or damage caused by the non-performance of its obligations attributable to the Promark being delayed or prevented because of a strike, inability to get materials or services, riots, sabotage, war, act of God, a supplier’s or manufacturer’s bankruptcy or insolvency, or any other reason that is beyond the reasonable control of the Promark.
Promark shall retain all right, title and interest in and to the intellectual property (including without limitation all specifications) developed and/or owned by Promark prior to the purchase of Product(s). No purchase of Product(s) will cause any intellectual property to transfer from Promark to purchaser.
Purchaser warrants that it has the right to provide to Promark with any drawings and/or material it provides and Promark’s use shall not cause Promark to infringe on any third-party intellectual property right whatsoever. Purchaser hereby agrees to indemnify Promark from and against any and all costs, damages or awards (including legal fees) resulting from any actual or claimed infringement.
This agreement is not cancelable after it has been accepted by Promark. If Customer cancels this agreement, Customer agrees that it will forfeit any deposits delivered to Promark under this agreement and will indemnify Promark against and will reimburse Promark the full Purchase price for any and all damages, losses, charges or other costs Promark may incur as a result of such cancellation, including, but not limited to, any additional charges that Promark may incur, direct and indirect costs related to this agreement and lost profits.
11. Limited Warranty
Promark warrants that new and unused Products furnished by Promark are free from defect in workmanship and material as of the time and place Promark makes delivery. Also, where Promark undertakes to perform or assist in any servicing, installation, demonstration, repair or replacement, Promark warrants that its performance or assistance will be free from defect in material or workmanship. Promark’s warranties are extended only to the original purchaser and may not be assigned to any subsequent Customer. In the case of Promark’s breach of warranty or any other duty with respect to the quality of any Products, the exclusive remedies therefor shall be (i) repair; (ii) replacement; or (iii) return of the purchase price (less reasonable depreciation) on authorized return of the Products. Selection among these three remedies shall in each case be at Promark’s sole option. Any such claim against Promark must be made promptly in writing and promptly pursued by Customer within one (1) years following the shipment date, following which all of Promark’s warranties and other duties with respect of the quality of the Products or of any services or replacement goods furnished by Promark in connection therewith shall be conclusively deemed to have been satisfied, all liability therefor terminates, and no action for breach of any such warranty or duty against Promark may thereafter be commenced.
In no event shall this warranty apply to any Products which have been subject to misuse, misapplication, negligence, accident, modifications or tampering, or any attempts by Customer or anyone other than Promark to repair or replace the Products or any part thereof, nor shall it apply to Promark’s product components used other than in Promark’s Products for which the same were designed.
Customer will reimburse Promark for any and all costs of the non-warranty replacement parts paid for by Promark in connection with any repairs or services hereunder (including freight and other shipping charges).
PROMARK EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AS TO NON-INFRINGEMENT AND THE QUALITY OF ANY GOODS OR SERVICES FURNISHED BY PROMARK OR OTHERS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. THE DESCRIPTION OF THE PRODUCTS CONTAINED IN THIS AGREEMENT IS FOR THE SOLE PURPOSE OF IDENTIFYING THE PRODUCTS AND IS NOT A WARRANTY. NO REPRESENTATIVE, DEALER, AGENT OR EMPLOLYEE OF PROMARK HAS ANY AUTHORITY TO EXTEND THE SCOPE OF THIS WARRANTY OR MAKE ANY OTHER REPRESENTATIONS, PROMISES OR GUARANTEES IN CONNECTION WITH THE MANUFACTURE, SALE OR APPLICATION OF THE PRODUCTS. PRODUCTS ARE SUBJECT TO CONTINUAL TECHNICAL DEVELOPMENTS AND PROMARK RESERVES THE RIGHT TO CHANGE DESIGN AND/OR TECHNOLOGY AT ANY TIME.
12. Export Control
Certain Products may be subject to export controls under the Laws of the United Stated of America and other countries. Customer must comply with all such Laws and not export, re-export or transfer, directly or indirectly, any such product except in compliance with such Laws. Products sold by Promark cannot be transferred, sold or re-exported to any party on the Entity List or Restricted Person List of the U.S. Department of Commerce, Bureau of Industry and Security (BIS), any party designated by the U.S. Treasury Department’s Office of Foreign Assets Control, and any party debarred or sanctioned for proliferation or terrorism reasons by the U.S. State Department. Products sold by Promark are not designed, intended or authorized for use in life support, life sustaining, nuclear, or other applications in which the failure of such Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. If Customer uses or sells the Products for use in any such applications: (1) Customer acknowledges that such use or sale is at Customer’s sole risk; (2) Customer agrees that Promark is not liable, in whole or in part, for any claim or damage arising from such use; and (3) Customer agrees to indemnify, defend and hold Promark harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.
13. Force Majeure.
Promark shall be excused from any performance pursuant to the terms hereof or any Customer’s order for reasons beyond Promark’s control which render Promark’s performance impossible or impracticable, including, without limitation, strike, riot, fire, war, late or non-delivery by Promark’s suppliers, lack of shipping space, assertion by third parties of infringement claims, domestic and foreign governmental actions and regulations, and all other contingencies beyond Promark’s control.
Any notice required or permitted to be given to either party shall be sufficiently given if delivered personally or sent by prepared registered mail or transmitted by email, telex, telefax or other form of recorded communication to the party at the address and fax numbers provided by such party. A notice delivered to the party to whom it is addressed shall be deemed to have been given and received on the date it is delivered at that address provided that if the date is not a business day then the notice shall be deemed to have been given and received on the third business day next following the date of its mailing. Any notice transmitted by email, telex, telefax or other form of recorded communication shall be deemed given and received on the first business day after its transmission.
The parties acknowledge having expressly required that this document and all present or future notices, requests, agreements and any other writings in relation thereto be drawn in English. Les parties déclarent avoir expressément requis que cette document et tous les avis, demandes et documents actuels ou futures s’y rapportant soient rédigés en anglais.
16. Error of calculation
All errors of calculation in an order or invoice will be corrected by the Promark as soon as possible.
17. Late Payment Interest
Any payment due and payable shall bear interest as of the Due Date and shall continue to accrue such interest until payment of the amount due is made. The interest rate to be applied to any payment not paid by the Due Date shall be equal to the lesser of either (a) 12% per annum or (b) the maximum rate permitted by applicable Quebec law on such date, and shall apply until full payment is made. Customer shall be liable for costs of collection, including reasonable attorneys’ fees and court costs, in any action to collect past due amounts.
18. Proper Law of Contract
This contract shall be governed by the laws of the Province of Quebec, Canada and the laws of Canada applicable therein. Any dispute, question or remedy howsoever arising shall be determined exclusively by the Courts of the district of Montreal, province of Quebec, Canada.
For purposes of this Agreement “business day” means any day except Saturdays, Sundays and Statutory holidays applicable in the Province of Quebec.