Terms & Conditions
M.V. Fraser & Associates Consulting Ltd.
Terms and Conditions of Sale Agreement
- SCOPE OF CONTRACT – This order of merchandise specified on the Purchase Order(s) attached hereto is upon the following terms and conditions, which will replace and supersede all prior communications, representations, negotiations and agreements between the parties and constitute the entire contract between BUYER and M.V. Fraser and Associates Consulting Ltd. hereinafter referred to as (“SELLER”) when accepted by SELLER or upon delivery of the merchandise, which contract can only be modified by a writing signed and duly approved by BUYER and SELLER. This order is subject to acceptance by SELLER’s management. SELLER may cancel the order after acceptance by notice to BUYER not later than fifteen (15) days after the acceptance date.
- EXCLUSION OF WARRANTIES – The goods sold pursuant to this contract are sold as is. All warranties of any nature, expressed or implied, including, but not limited to those of merchantability, fitness for a particular purpose, those against defects, including latent defects in material or workmanship, those arising from trade or custom from course of dealing with SELLER, those relating to flammability, physical or chemical characteristics or qualities, those relating to suitability for use for health and safety purposes, and suitability for use as personal protective equipment, are hereby expressly excluded. There is no warranty that the goods will be delivered free of the claims of any person by way of patent, copyright, trademark, infringement or the like.
- DELIVERY – (A) Delivery or tender of delivery of any instalment within fifteen (15) days after the cancellation date shall be deemed to be timely performance by SELLER. Thereafter, shipment or other tender of delivery prior to receipt of written cancellation by BUYER shall constitute timely performance by SELLER. Any defect in quality or delays in delivery shall affect only the particular portion of delivery so defective or so delayed and shall not affect the balance of this contract.
(B) Delivery which does not vary more than ten (10%) than the quantities of merchandise contracted for, and delivery of substituted sizes, shall constitute compliance under this contract. Partial deliveries shall be accepted by the BUYER and paid for at contract prices and items. If the sale of the merchandise shown on the purchase order attached hereto is by sample, delivery of merchandise of quality substantially equal to such samples or superior thereto shall constitute full compliance with this contract.
(C) Where the BUYER has declared or manifested an intention that it will not accept delivery, no tender by SELLER shall be necessary, but SELLER may, at is option, give notice to the BUYER that SELLER is ready and willing to deliver in accordance with the provisions of this contract, and such notice shall constitute a valid tender of delivery.
(D) All shipments are made at BUYER’s sole risk, and the merchandise shall be delivered F.O.B. SELLER’s warehouse in Toronto (the “Shipping Point”). Title passes to BUYER only upon full payment for the merchandise, but the merchandise shall be at the risk of BUYER as and from delivery, at the Shipping Point, to the carrier, who should act solely as BUYER’s agent or tender of delivery. Delivery shall be deemed complete when the merchandise is so delivered or tendered for delivery.
(E) All Freight, express and delivery charges and all applicable taxed shall be paid as a separate item by the BUYER and shall not be subject to any discount. The SELLER shall not be responsible for the payment of any freight, including returns, after the merchandise arrives at the Shipping Point.
(F) SELLER shall not be liable for any delay in delivery of all or any part of the merchandise and shall not be liable for any losses resulting from its inability to carry-out or a delay in carrying-out any of its obligations arising from circumstances beyond its control, including, without limitation lack of shipping facilities, delay or inability to obtain supplies, labor or materials through SELLER’s usual sources, government requests or regulations, or any cause or circumstance whatsoever (whether like or unlike the foregoing). In such event, SELLER may, in its discretion, without notice to BUYER, at any time and from time to time (1) extend SELLER’s time for performance for a time which is reasonable under all the circumstances, and (2) cancel all or any portion of this order.
- PAYMENT AND TERMS OF PAYMENT – (A) All invoices are in CAD dollars and payable in CAD dollars. No discount may be taken unless specified on the purchase order attached to this contract. Any cheque or remittance received from or for the account of the BUYER may be accepted and applied by SELLER or its agent against any indebtedness owing by BUYER as shown by the books and records of SELLER, without prejudice to the remainder of indebtedness, regardless or any notation appearing on, referring to or accompanying such cheque or remittance.
(B) Unless otherwise agreed in writing, payment of the purchase order is to be made in three (3) instalments in cash by the following payment schedule;
(1) A non-refundable Deposit of Sixty Percent (60%) of the total value of the purchase order is payable prior to the acceptance of the purchase order by the SELLER.
(2) A Cash on Delivery payment of Forty Percent (40%) of the total value of the purchase order is payable upon Delivery or tender of delivery by the SELLER.
(3) Final Payment (if necessary) for the balance remaining on the purchase order is payable within thirty (30) days from delivery or tender of delivery by the SELLER.
Interest will be charged on all delinquent accounts at the rate of eighteen per cent per annum (18%), one and a half percent (1-1/2%) per month.
(C) If in the opinion of SELLER, the financial condition of BUYER warrants such action, SELLER may, at any time, demand immediate payment or required other security therefore; in the event such demand is not satisfied within a reasonable time, SELLER may, at its option, terminate this contract. Without limiting any other provisions hereunder, the receipt by the SELLER of any payment by the BUYER referred to above shall constitute the BUYER’s full acceptance of the terms and conditions specified herein.
- CLAIMS – BUYER shall be deemed to have accepted the goods and to have waived any rights it may have to cancel the contract, and reject the goods unless the SELLER receives from BUYER, within ten (10) days from the date of receipt of goods written notice specifying the grounds and the nature of the objection and the amount of allowable damages claimed. Goods upon which BUYER is basing the claim must be returned to SELLER within ten (10) days of the receipt or written notice of BUYER’s claim, otherwise, BUYER shall be deemed to have accepted the goods and to have waived all claims. SELLER shall be given adequate opportunity to inspect and test the goods claimed to be defective and may replace any defective goods within a reasonable time, or alternatively, may cancel the order in whole or in part, without any further recourse by BUYER.
- RETURNS – No returns will be allowed without the SELLER’s written permission, nor will returns be accepted without an authorization number issued by SELLER. SELLER will not issue such authorization unless a return authorization request, requesting a return authorization number and setting forth the reasons for such request, the style numbers, quantity, shipping date, invoice number and colours of the goods shipped is submitted to SELLER’s return department in Toronto, within fourteen (14) days of shipment from the SELLER’s warehouse in Toronto or within five (5) days of BUYER’s receipt whichever is later. In the event that SELLER issues a return authorization number, BUYER must return the merchandise within twenty (20) business days of the date such number was issued. Returns must be in cartons; hangers will not be accepted. Goods must be folded in the same way as when shipped to BUYER and must be accompanied by a credit memo stating the style number(s), size(s), colour(s), and quantities. The return of authorized merchandise shall be prepaid. SELLER will not accept collect shipments and will not pay service, handling or shipping charges added to a return charge back. If BUYER returns used goods, goods which are not in the same condition as initially received by BUYER, or goods which are not in accordance with the authorization, such goods shall be sent back to BUYER, at BUYER’s sole cost and expense, and BUYER shall only be credited with quantity authorized. Notwithstanding the provisions of Section 2 hereof, for goods being supplied for use as personal protective equipment, or for heath and safety purposes, the SELLER recommends that the BUYER conduct its own testing to ensure the goods sold hereunder comply with the BUYER’s specifications relating thereto, and in those limited circumstances where the BUYER has conducted its own independent testing to ensure compliance with its specifications, the SELLER shall extend the period for return under this Section 6, from fourteen (14) days to thirty (30) days, with all other provisions of this Section 6 remaining unchanged.
- DESIGN PRODUCTION – No rights in pattern, artwork, graphics, or design of goods or other intellectual property relating to the goods supplied hereunder shall pass to BUYER, and the BUYER shall have no rights to use, reproduce or otherwise licence, such intellectual property rights, except as an integral part of the goods, and BUYER hereby agrees not to cause or permit, either directly or indirectly, any such pattern, artwork, graphics, or design to be copied, reproduced, or reconstructed in an attempt to render the goods non-proprietary. For clarity, design of goods for this contract will be defined as; (A) styling (B) colour combination or colour offering (C) using similar fabric, fabric construction, or fabric weight, (D) design specifications which for this contract will be defined as any seven (7) technical measurements that are the same or that are not greater than or less than two times the measurement’s tolerance as detailed within the design specifications package of the goods covered under this contract, (E) similar graphic art and graphic art placement, or (F) similar labeling and label placement, or (G) packaging that could be reasonably be considered as part of the design of the goods covered under this contract. For further clarity, any goods that do not have seven (7) points of differentiation from the foregoing list will be considered proprietary and will be subject to a (“ROYALTY FEE”) of Fifteen Percent (15%) of the total value of the purchase order or final invoice, whichever is greater, including any duty, freight, or importation costs, and excluding any discounts given. ROYALTY FEE is payable to SELLER from BUYER upon receipt of such goods by the BUYER from any (“SUPPLIER”) other than SELLER.
- EXCLUSIVITY - The BUYER hereby agrees that the SELLER’s SUPPLIER base is proprietary to SELLER, any attempt to render the goods covered by this contract non-proprietary, or if the BUYER purchases the goods covered by this contract from any supplier other than SELLER, or if the BUYER purchases any goods directly from any of SELLERS’s SUPPLIER(S), any such purchases will be subject to a (“ROYALTY FEE”) of Fifteen Percent (15%) of the total value of the purchase order or final invoice, whichever is greater, including any duty, freight, or importation costs, and excluding any discounts given. ROYALTEE FEE is payable to SELLER from BUYER upon receipt of such goods by the BUYER from any supplier other than SELLER. SUPLLIER for the purposes of this contract will be defined as any person or entity that within the twelve (12) months prior to engaging in this contract with SELLER were not in a direct purchase and sale relationship with the BUYER.
- LIMITATIONS OF SELLER’S LIABILITY – In the event, that, notwithstanding section 2 hereof, SELLER is found liable for damages, SELLER’s liability hereunder is limited to liability for defective goods, which liability shall not exceed the amount by which the price paid by BUYER for such goods. Subject to the foregoing, the SELLER shall not be liable for any delays in delivery or for any other damages of whatever nature, howsoever arising.
- DEFAULT BY BUYER – Upon failure of Buyer to make any payment to SELLER when due, or if BUYER fails to take possession of the merchandise within reasonable delay after tender of delivery, or in the event that BUYER fails to respect any other term and condition of this or any other order or contract with SELLER, or if BUYER shall become insolvent or if insolvency proceedings shall be commended by or against BUYER, SELLER, may at its option, in addition to any other rights it may have with respect to this order: (1) cancel this contract with BUYER or any portion of this order (in which event, BUYER shall remain liable for damages); (2) defer any shipments hereunder until such default is remedied (and in such event, BUYER agrees to accept and pay for the deferred shipment even though deliveries are tendered after the time for delivery specified herein); (3) declare forthwith due and payable all amounts owing by BUYER under this contract; (4) recover possession of any merchandise for which payment has not been made in full and sell all or any part of the undelivered goods and / or recovered merchandise, without notice, at public or private sale, (the BUYER to be responsible for the costs and expenses of such sale and for any deficiency, and the SELLER to account to the BUYER for any excess); (5) obtain damages from the BUYER.
- REMEDIES OF SELLER – All rights and remedies of SELLER against BUYER under any applicable law shall be cumulative and may be exercised or asserted as SELLER may elect.
- WAIVER – No waiver of any term, condition, right, recourse or default shall be effective unless such waiver is in writing and signed by parties. Any such waiver shall apply only to term, condition, right, recourse or default expressly mentioned in such writing.
- NOTICES – All communications provided for herein shall be in writing, and, if to SELLER, mailed or delivered to M.V. Fraser & Associates Consulting Ltd. at its office located at 227 Sorauren Avenue, Toronto, ON M6R 2G3, or at such other address as SELLER or agent may hereafter designate, or if BUYER, mailed or delivered to BUYER at its address designated on the face of this contract or at such other address as BUYER may designate in writing.
- APPLICABLE LAW AND JURISDICTION – (A) This contract shall be governed by the laws of the Province of Ontario. (B) In the event of any dispute between the partied arising out of a relating to this contract, any such dispute shall be adjudicated by the parties only in the courts of the District of Toronto, Province Of Ontario, and the parties hereby consent to the jurisdiction of such courts. The parties further consent that any process or notice of motion of or other application to said courts or a judge thereof may be served outside the province of Ontario be registered mail or by personal service, provided reasonable time for appearance is allowed.
- LIMITATION ON ACTION – The parties agreed that the prescription period or the period of limitations for the BUYER to institute proceeding with respect to any claim of any kind, nature or description is some (1) year from the date of delivery of the merchandise alleged to be defective.
- FUTURE TRANSACTION – Expect to the extent a future transaction between SELLER and BUYER is governed by a signed contract or order and subsequent acceptance of SELLER, the terms and conditions hereof shall govern all future transactions between parties.