In these Conditions, the “Seller” means Trans-Mit Steel Inc. by which goods are sold. The “Buyer” means the body corporate, firm or person by which the goods are purchased, and the “goods” means those described in the Buyer’s Purchase Order.
The terms and conditions set forth herein constitute the entire contract between the Buyer and the Seller, relating to the sale of goods, and this prevails over any and all terms contained in the Buyer’s purchase order.
Confirmation of Contracts: As and when Seller and Buyer agree upon the specific terms and conditions of an individual Contract (including, without limitation, type, size, grade and specifications of Product, manufacturer, quantity, price, delivery place, time and terms, packing, and other special terms and conditions), Seller and Buyer shall confirm the same in writing by letter, telex or e-mail.
Price. Unless otherwise expressly provided in each Contract, the price of Product includes all taxes, duties and packing, loading, shipping, insurance and other charges imposed on or incurred for the Product up to the time Buyer takes delivery thereof pursuant to Section 6.
Payment. Buyer shall pay to Seller for Product purchased no later than the agreed due date. If any amount payable by either party to the other party hereunder or under any Contract is not paid in full on the date such amount is due hereunder or thereunder, a late charge shall accrue on such overdue amount at a rate equal to the lesser of: (i) the Citibank, N.A. prime rate in effect as of the Saturday preceding the due date (or if the Citibank, N.A. prime rate is not then available, the prime rate of another U.S. bank selected by Seller) plus three percent (3%), or (ii) the maximum rate permitted by applicable law.
Delivery. All deliveries of Product from Seller to Buyer under each Contract shall be made as per agreed condition in the Buyer’s Purchase Order, and title to and risks of loss or damage to Product shall pass from Seller to Buyer when the Product shall have been delivered to Buyer at the Delivery Place.
Warranties. Seller warrants that under each Contract it will transfer to Buyer good and marketable title to Product furnished to Buyer thereunder and that all Product so furnished shall conform to applicable descriptions, specifications and requirements set forth in such Contract. The foregoing warranties are seller's only warranties, beyond which seller does not make and hereby expressly excludes and disclaims, any warranty of merchantability or of fitness of product for any particular purpose or any warranty, expressed or implied, which might otherwise arise from the course of dealing between the parties, from any usage of trade or otherwise. Except in the case of a defect in Product which Buyer is or would be unable to detect during an inspection which is customarily used for such Product, any claim by Buyer under any Contract concerning any breach of the foregoing warranties shall be made in writing as soon as practicable after arrival and inspection of the Product at the Delivery Place. Further, in no event may any arbitration or legal action based upon breach of the foregoing warranties be commenced after one year from the date the Product is delivered.
Force Majeure. Either party shall be excused from performance, or receipt or acceptance of performance by the other party, of any part of this terms & conditions or any Contract, and the Contract shall be deemed suspended to the extent that performance or receipt or acceptance by that party is prevented, hindered, delayed or otherwise made impracticable by any act of God, earthquake, tornado, flood, drought, peril of the sea, embargo, blockade, voluntary or involuntary compliance with any valid or invalid governmental law, rule, regulation, order, restriction, requirement, priority, request or recommendation, or any other act or failure to act, whether legal or otherwise, of any government or instrumentality thereof or the public enemy, war, foreign war, mobilization, revolution, rebellion, insurrection, riot or civil commotion, fire, accident, explosion, epidemic, pandemic, strike, lockout, sabotage or other labor interruption or trouble, partial or total interruption, loss or shortage of transportation or loading facilities, shortage of power or energy, or any other causes beyond the reasonable control of such party affecting its activities or its supplier or customer, or of their respective supplier(s) or customer(s), any carrier of the Product or any other person, firm or corporation directly or indirectly connected with the performance, or the receipt or acceptance of performance by the other party, of this Terms & conditions or such Contract, during the continuance of any such cause and for so long as such cause shall continue to prevent, hinder delay or make impracticable such performance or receipt or acceptance. If performance, or receipt or acceptance of performance, of any Contract will be suspended for more than [sixty (60)] days by any of the causes specified above, either party may terminate such Contract upon giving written notice of termination to the other party.
Except to the extent necessary to perform this Terms & conditions or each Contract, each party will not, and will cause its officers, directors, employees and agents not to, disclose to any third party or use, for any purpose other than to perform this Terms & conditions or each Contract, all non-public proprietary information (whether technical, commercial or otherwise) of the other party in respect of this Terms & conditions or any Contract, obtained from the other party in the course of the negotiations for, or performance of, this Terms & conditions or any Contract hereunder.
Compliance with Laws and Regulations.
In the performance of this Terms & conditions and all Contracts hereunder, each party shall comply with all requirements of applicable foreign, federal, state and local laws, rules, regulations and orders.
Without limiting its rights and remedies as provided at law, in equity or otherwise, either party may at its option, by written notice to the other party, (i) forthwith terminate this Terms & conditions and/or any Contract, and/or (ii) accelerate any installment or otherwise postponed or deferred payment to be made by the other party under this Terms & conditions or under any Contract, therefore causing it to become immediately due and payable, if any of the following events shall occur: (a) if the other party fails to perform or comply with any provision or covenant of this Terms & conditions or any Contract in any material respect, which failure remains uncorrected for more than thirty (30) days (or five (5) days in the case of a failure to make payment) after written notice thereof by the party seeking to cancel or (b) if the other party shall become unable to pay its debts generally as they become due, or shall hold a meeting of its creditors, or shall make a general assignment for the benefit of creditors, or shall file a voluntary petition in bankruptcy or insolvency, or shall be adjudicated or declared a bankrupt or insolvent, or shall file a petition or answer seeking, consenting to or acquiescing in any reorganization, arrangement, adjustment, composition, readjustment, liquidation, dissolution, or similar relief under any present or future statute, law or regulation, or shall file an answer admitting or not contesting the material allegations of a petition or answer filed against it for or proposing any such relief; or if any proceeding against it of the type referred to herein seeking any such relief shall not have been dismissed within fourteen (14) days after the commencement thereof; or (c) if a trustee, receiver, liquidator, custodian or similar official of the other party or of any material part of its assets or properties shall be appointed with the consent or acquiescence of the other party, or if any such appointment, not so consented to or acquiesced in, shall remain unvacated or unstayed or such official shall not have been dismissed or discharged within thirty (30) days of such appointment; provided that Seller may immediately upon the happening of any of such events, at its option, suspend deliveries and performance under this Terms & conditions and/or any Contract. The costs and expenses (including reasonable fees and disbursement of counsel) incurred by either party due to a breach by the other party of this Terms & conditions or any Contract or in connection with the enforcement of this Terms & conditions or any Contract shall be borne by the other party.
Limitation on Buyer’s Damages.
In the event of a breach of this Terms & conditions or any Contract by Seller, Buyer’s exclusive remedy and Seller’s limit of liability shall be for Buyer’s actual damages which shall in no event exceed the price specified in the Contract of the particular Product with respect to which the damages occurred. In no event shall Seller be liable to Buyer (a) on account of any such breach unless Buyer shall have commenced an arbitration for such breach within one year from the date the relevant Product is delivered or (b) for Buyer’s manufacturing costs, lost profits, goodwill or other indirect, consequential or incidental damages.
Governing Law; Arbitration:
This Terms & conditions and all Contracts hereunder shall be governed by and construed in accordance with the laws of the Province of Ontario, and the federal laws of Canada applicable in that Province, without regard to conflict of laws principles. Any controversy or claim arising out of or relating to this Terms & conditions or any Contract, or the breach of any thereof, shall be settled by arbitration in Toronto, Ontario administered by ICDR Canada in accordance with its Canadian Arbitration Rules. The language of the arbitration shall be English. The award shall be final and binding upon the parties and judgment upon the award rendered by the arbitrator(s) may be entered in any court or tribunal having jurisdiction thereof. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and Ontario's International Sales Convention Act does not apply to this Terms & conditions.