In these Conditions, the “TMS” means Trans-Mit Steel Inc. by which services are provided. The “CUSTOMER” means the body corporate, firm or person by which the services are purchased, and the “services” is pursuant to (1) (a).
Section 1 Services to be Provided.
(1) TMS shall furnish to CUSTOMER the following services (the “Services”):
(a) Steel Cutting Service: TMS will provide steel cutting services to CUSTOMER, in accordance with conditions agreed in writing from time to time between the parties hereto. The conditions shall be confirmed and agreed by exchanging (i) Slitting Order by CUSTOMER and (ii) its corresponding Sales Order Confirmation by TMS.
(b) Auxiliary and Preparatory Service: In connection with the Steel Cutting Service mentioned above, TMS may provide its related auxiliary and preparatory service, including but not limited to (i) receiving the master coils at TMS location, (ii) temporary storage of processed steel before delivery to CUSTOMER.
(2) Reports and Administration. From time to time and at any reasonable time upon the request of CUSTOMER, TMS shall provide to CUSTOMER (a) written reports on CUSTOMER inventory stationed in TMS territory.
Section 2 Fee for the Services
(1) For the Services to be provided by TMS to CUSTOMER, CUSTOMER shall make payment to TMS, in accordance with the conditions specified in the Sales Order Confirmation by TMS.
(2) CUSTOMER shall bear and pay banking charges, and/or any other charges to be imposed or charged on any payment by CUSTOMER to TMS under this Conditions. CUSTOMER shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by CUSTOMER hereunder.
Section 4 Confidential Information
(a) All non-public, confidential or proprietary information of a party, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, "Confidential Information"), disclosed by a disclosing party to the receiving party, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the provision of the Services and this Conditions is confidential, and shall not be disclosed or copied by the receiving party without the prior written consent of disclosing party. Confidential Information does not include information that is:
(i) in the public domain;
(ii) known to receiving party at the time of disclosure; or
(iii) rightfully obtained by receiving party on a non-confidential basis from a third party.
(b) receiving party agrees to use the Confidential Information only to make use of the Services.
Section 5. Representation and Warranty
(a) TMS represents and warrants to CUSTOMER that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Conditions.
(b) The TMS shall not be liable for a breach of the warranty set forth in Section 5(a) unless CUSTOMER gives written notice of the defective Services, reasonably described, to TMS within [NUMBER] days of the time when CUSTOMER discovers or ought to have discovered that the Services were defective.
(c) Subject to Section 5(b), TMS shall, in its sole discretion, either:
(i) repair or re-perform such Services (or the defective part); or
(ii) credit or refund the price of such Services at the pro rata contract rate.
(d) THE REMEDIES SET FORTH IN SECTION 5(c) SHALL BE THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND TMS'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 5(a)
Section 6. Disclaimer of Warranties
EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 5(a) ABOVE, TMS MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
Section 7. Limitation of Liability
(a) IN NO EVENT SHALL TMS BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT TMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL TMS'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS CONDITIONS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED TWO TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO TMS PURSUANT TO THE APPLICABLE SALES ORDER CONFIRMATION GIVING RISE TO THE CLAIM.
Section 8. Waiver
No waiver by TMS of any of the provisions of this Conditions is effective unless explicitly set forth in writing and signed by TMS. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Conditions operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Section 9. Force Majeure
No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Conditions, for any failure or delay in fulfilling or performing any term of this Conditions (except for any obligations of CUSTOMER to make payments to TMS hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, other potential disaster(s) or catastrophe(s), such as epidemics, pandemics or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Conditions; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within thirty (30) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of 120 consecutive days following written notice given by it under this Section 9, the other party may thereafter terminate this Conditions upon 30 days' written notice.
Section 10. Assignment
CUSTOMER shall not assign any of its rights or delegate any of its obligations under this Conditions without the prior written consent of TMS. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves CUSTOMER of any of its obligations under this Conditions.
Section 11. Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in this Conditions shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Section 12. No Third-Party Beneficiaries
This Conditions is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
Section 13 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.
Section 14. Notices
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth in the Sales Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) [or email] or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Conditions, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
Section 15. Severability
If any term or provision of this Conditions is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.
Section 16. Survival
Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of the Contract including, but not limited to, the following provisions: Confidentiality, Governing Law, and Survival.
Section 18. Amendment and Modification
This Conditions may only be amended or modified in a writing which specifically states that it amends this Conditions and is signed by an authorized representative of each party.