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TERMS OF SALE

- as of November 19, 2014 -

 

Article 1: General

1.1    Where mention is made of “Fabory“ and/or “us“ and/or “we“ in these general terms of sale (“GTS“), this refers to Fabory Canada Inc, GST Number 10307-7657 with its registered offices at Fabory Canada Inc, 1220 Michelin, Laval Québec H7L 4R3, and to companies and businesses linked and/or affiliated with the aforementioned company.

1.2    All contractual relationships, particularly offers, sales contracts, deliveries and services, made on the basis of any orders by our customer (“Customer“), in particular through our online shop www.fabory.com (“Online Shop“) or through our catalogs, flyers or other sales channels, legal relationships resulting from the User Account (as defined below) and any other relationships (including quasi-contractual relationships) between us and the Customer shall be governed by these GTS.

         Fabory's acceptance of any order is subject to Customer's assent to all of the terms and conditions set forth herein. Customer's assent to these GTS shall be presumed from Customer's receipt of Fabory's acknowledgment, or from Customer's acceptance of all or any part of the products ordered. No additions or modifications of Fabory's GTS by Customer shall be binding upon Fabory, unless agreed to in writing by an authorized representative of Fabory. If a purchase order or other correspondence submitted by Customer contains terms or conditions contrary or in addition to the terms and conditions contained herein or in Fabory's acknowledgment, Fabory's fulfillment of any such purchase order shall not be construed as assent to any of the terms and conditions proposed by Customer, and will not constitute a waiver by Fabory of any of the terms and conditions contained herein or in Fabory's acknowledgment.

         The terms and conditions in: (i) Fabory's forms, (ii) acknowledgments, (iii) quotations, (iv) invoices, (v) websites, (vi) catalogs are incorporated herein by reference, and together with the GTS constitute the entire and exclusive agreement between Customer and Fabory with respect to the subject matter of the GTS.

Customer consents to the use of documents in electronic form.

1.3    General terms and conditions of the Customer do not apply, regardless of whether or not we expressly object to them in a particular case. We hereby reject the applicability of the Customer's general terms and conditions. The Customer hereby renounces the applicability of the Customer's general terms and conditions.

1.4    Our product offerings are directed exclusively to Customers that are business customers, i.e. a corporation, natural or legal person or other organization which the law ascribes the legal capacity who or that enters into the relevant contract directly in relation to his or its business or professional activities and does not purchase for personal, family or household use. Our products and services are intended for business use only. By using its User Account or placing orders through any of our sales channels, the Customer declares unconditionally to purchase and use the goods and services for the aforementioned purposes only and to act as a business customer and not as a consumer subject to consumer protection legislation. Our product offerings are not directed to persons who are under age. If goods are resold or exported, Customer assumes full responsibility for compliance with all applicable laws, including export controls.

1.5    “We reserve the right to unilaterally change these GTS. We will inform the Customer about the amended provisions. The changes will become effective and will be part of the contractual relationship with the Customer, unless the Customer has objected to this by giving notice in writing, by fax or email within a period of six weeks following the notification about the changes.

1.6    Product depictions in the catalogs and websites are for illustrative purposes only. Possession of, or access to any catalog, literature or websites does not constitute the right to purchase products. Fabory reserves the right to revise publishing errors in its catalogs or any of its websites. Despite our efforts, occasional pricing errors may occur in the catalogs and websites. Fabory reserves the right to cancel any and all orders resulting from such pricing errors, even if Customer has received an order confirmation from Fabory.

1.7    Products (and country of origin) may be substituted and may not be identical to catalog or website published descriptions and/or images.

 

Article 2: User Account

2.1    The Customer has the opportunity to register and create a personal user account (“User Account“). Each Customer shall keep only one User Account at the same time. Registration, activation and use of the User Account are free of charge. The User Account will be activated by Fabory after review of the registration and, at our discretion, a check of creditworthiness. We are, however, not obligated to accept a registration by a Customer.

2.2    All information provided by the Customer must be true, accurate and complete and any future changes must be communicated without undue delay, in particular if the Customer should cease to be a business customer (as defined under Article 1.4).

2.3    In the event of a violation of applicable law, these GTS or other applicable contractual terms by the Customer, Fabory reserves the right to withhold any features of the Online Shop, to temporarily suspend the User Account, to irrevocably delete the User Account or to take any other appropriate actions upon Fabory's reasonable discretion.

2.4    The Customer may delete its User Account at any time without giving any reasons. A suspension or deletion of the User Account does not affect the rights and obligations incurred by the Customer prior to such deletion.

2.5    The Customer may not transfer the User Account and the rights and obligations resulting therefrom without our prior written consent. The Customer acknowledges and agrees that the User Account may not be shared with third parties or be used for private (consumer) purposes. The use of the User Account deems the respective user to be authorized by the Customer. The Customer hereby authorizes the respective user of the User Account to make transactions on behalf and for the account of the Customer. By delivering the goods to the respective user following its instructions, we are discharged from our obligations towards the Customer.

2.6    The Customer must keep its credentials confidential and appropriately restrict the access to the User Account. In particular, the Customer must protect the credentials against loss, theft and any unauthorized use. The Customer must notify us without undue delay of any loss, theft or unauthorized use of its credentials in writing, by fax or email. Until such notification, any use of the User Account is deemed to be authorized by the Customer and any purchases through the User Account are deemed to be made with binding effect on the Customer, i.e. on behalf and for the account of the Customer.

 

Article 3: Conclusion of Contracts, Terms of Contract

3.1    The display of goods in the Online Shop, catalogs or any other literature does not constitute a binding offer to conclude a sales contract but rather an invitation to place an order.

3.2    For orders placed through the Online Shop: By clicking the button "Proceed to checkout" the Customer initiates the ordering process. The Customer may log in with its credentials, or create a User Account. Subsequently, the Customer can select the means of shipping and method of payment. The Customer is given the option to review and change its entries at any stage of the ordering process. Directly before the Customer places the order, the order details will be displayed in a concise manner for final review and changes. By clicking the button "Buy Now" at the end of the ordering process, the Customer places the order and makes a binding offer to purchase the goods shown on the order page.

3.3    Without undue delay upon receipt of the order, we will send (usually by e-mail or fax) a confirmation of receipt to the Customer. This confirmation of receipt shall not constitute an acceptance of the offer, unless the offer is expressly accepted in such confirmation. If the confirmation of receipt does not contain an express acceptance, a binding sales contract shall only be concluded upon receipt of our subsequent notification (usually by email or fax) to the Customer with which we will inform the Customer that the goods have been shipped. The Customer may not revoke the order before the appropriate time for the acceptance of an offer by us provided for in these GTS has passed.

3.4    For orders placed through the Online Shop: After placing the order, the Customer may print a summary of the order details. We will save the details of each order for a reasonable period of time. The Customer may access, view and print these details via the User Account. With the confirmation of receipt, the Customer will receive the order details and a link to these GTS. The Customer may save and print them as well. The current version of the GTS is also available in our Online Shop under the folder "General Terms of Sale" where they may be viewed, downloaded and printed.

3.5    In the event that our supplier fails to deliver a good in a timely manner, we are entitled to refuse to accept a Customer's offer or to revoke our acceptance respectively and cancel the contract with regard to the undelivered goods, provided that our supplier's failure is not due to our fault or negligence and that we have informed the Customer hereof without undue delay. In this case, we will undertake to refund any pre-payment made by the Customer without undue delay.

 

Article 4: Interim Variation and Termination

4.1    Fabory retains at all times the right to impose minor variations in the products offered and/or sold by us, or in the composition of such products.

4.2    When the Customer cancels a sales contract (whether in total or in part), the Customer is obligated to compensate Fabory for all costs reasonably incurred by Fabory for the implementation of the sales contract, without prejudice to any right that Fabory may have to claim compensation for costs, damages, losses (including lost profits) and interest ensuing from the cancellation of the respective sales contract.

4.3    Without prejudice to its other rights, Fabory has the right to terminate the sales contract for cause in cases of insolvency, suspension of payment or liquidation of the Customer.

 

Article 5: Prices

5.1    Unless explicitly stated otherwise, prices listed in the Online Shop, catalogs or any other literature are wholesale, do not include shipping, handling fees, taxes, duties, import fees and/or customs brokerage charges, and are subject to correction or change without notice. Market sensitive commodity products will be priced according to current market conditions.

5.2    Fabory will decide in its reasonable discretion about the packaging and shipping and will choose, among other things, a suitable transportation provider. All costs related thereto are borne by the Customer, unless explicitly agreed upon otherwise with Fabory. For orders placed through the Online Shop: The costs for shipping and packaging will be displayed in the order overview before the Customer places the order.

5.3    Customer is responsible for applicable sales taxes, duties, import fees and any custom brokerage charges. For orders placed through the Online Shop: These costs (other than the applicable taxes, which will be displayed in the order review before the Customer places the order), are not included in the total amount presented at checkout and such amounts will be collected by the carrier on delivery.

 

Article 6: Shipment, Passing of Risk

6.1    Unless explicitly agreed upon otherwise, delivery shall be made “Ex Works (EXW)“ in accordance with Incoterms 2010 (as amended from time to time).

6.2    Partial deliveries of goods included in the same order shall be permitted, provided that the goods can be used separately and provided further that we shall bear any additional shipping costs caused thereby. In the event that a partial delivery is requested by the Customer, additional shipping costs shall be borne by the Customer.

6.3    The risk of accidental destruction, damage or loss of the sold goods as well as the risk to pay for the sold goods shall pass to the Customer upon delivery of the goods by us to the carrier in accordance with Article 6.1.

6.4    In the event that a delivery to the indicated address is not possible or the Customer refuses to accept or collect the shipment, we reserve the right to charge the Customer for any and all costs caused thereby (in particular for handling, packaging and shipping the goods).

 

Article 7: Delivery

7.1    Any delivery times stated in the Online Shop, catalogs or any other literature are of indicative nature only and shall not constitute or be construed as a statutory deadline or fix delivery deadline, unless explicitly stated otherwise by us. Fabory does not ship to post office box addresses and remote areas may require an additional 2-5 days for delivery. Standard shipping is not available to Nunavut, the Northwest Territories or Yukon.

7.2    After expiration of a delivery deadline, Fabory has the right to deliver the purchased goods within a reasonable grace period as a subsequent delivery.

7.3    Fabory shall not be liable for any delay in, or impairment of, performance resulting in whole or in part from any force majeure event, including but not limited to acts of God, labor disruptions, acts of war, acts of terrorism (whether actual or threatened), governmental decrees or controls, insurrections, epidemics, quarantines, shortages, communication or power failures, fires, accidents, explosions, inability to procure or ship product or obtain permits and licenses, inability to procure supplies or raw materials, severe weather conditions, catastrophic events, or any other circumstance or cause beyond the reasonable control of Fabory in the conduct of its business.

7.4    If the performance of the contract by us is affected by force majeure or by an unforeseeable impediment to perform which cannot be overcome by commercially reasonable efforts and which is not attributable to us, the initial delivery deadline shall be extended by the period of time during which the impediment to perform continues. We shall notify the Customer of the estimated new delivery date as soon as practicable. If the impediment to perform persists longer than 4 weeks after expiration of the initial delivery deadline, both parties are entitled to terminate the sales contract. Other termination rights that the Customer may have under applicable law remain unaffected.

 

Article 8: Payment

8.1    Fabory will invoice Customer for all purchases.

8.2    For Customers with established credit, unless otherwise specified below or in the invoice, the purchase price including any applicable taxes, shipping costs etc. (“Invoice Amount“) is due and payable in full upon within thirty (30) Banking Days following receipt of the invoice. A “Banking Day“ shall be any day other than Saturdays, Sundays and public holidays during which the banks in Toronto are open for business, excluding automated operations. All credit extended to Customer, and the limits of such credit, is at Fabory’s sole discretion, and may be reduced or revoked by Fabory at any time and for any reason.

8.3    The Customer shall - without any late notice being required – be in default of payment if the Invoice Amount is not credited on the Banking Day following the due date unless such late payment is due to events for which we are responsible.

8.4    Once default has occurred, the Customer shall be liable to pay interest to Fabory at a rate of 1% of the amount of the late payment per month until the day that payment is made in full. Fabory's additional compensation claims under these GTS or applicable law remains unaffected.

8.5    All out-of-court costs that Fabory pays in connection with the non-compliance by a Customer with regard to any of its obligations hereunder must be borne by the Customer. In cases of late payment, out-of-court costs shall be at least 15% of the amount to be recovered, with a minimum of CAD175.00.

8.6    Fabory will not bear any bank charges or fees for a money transfer.

8.7    The Customer agrees that we may submit invoices in electronic form. Further information about invoices in electronic form and how the Customer can get an invoice in paper form can be found on the service pages in our Online Shop.

 

Article 9: Warranty

9.1    The Customer shall inspect the goods with due care promptly upon delivery. Delivered goods shall be deemed to be approved by the Customer unless any defect is notified to us: (a)           in case of an obvious defect within a period of four Banking Days after delivery; or (b)          otherwise within three Banking Days from the day when the defect has been identified. Minor, commercially acceptable or technically unavoidable variations in quality, quantity, size, color, finish, measurements, treatment and such are accepted by the Customer and do not constitute a defect.

9.2    In the event of a claimed defect of delivered goods, upon our request, the Customer shall send the goods back to us freight paid and, if possible, in the original packaging, unless the goods are not fit for shipping due to their condition. If the defect claim is justified we shall reimburse the Customer for the least expensive type of transportation for sending the goods back to us, assuming the goods had been sent back to us from the initial place of delivery.

9.3    Any damage claims of the Customer are subject to the provisions contained in Article 11.

9.4    Any claims of the Customer resulting from or in relation to defective products shall be time-barred for up to 12 months following the passing of the risk to the Customer. This restriction of the limitation period shall not apply: (a) with respect to claims for damages from injury to life, body or health due to intentional or negligent breach of duty by us or by our legal representative or persons we engage in the performance of our obligations; and (b) with respect to claims regarding other damages arising from an intentional or grossly negligent breach of duty by us or by our legal representative or persons we engage in the performance of our obligations.

 

Article 10: Retention of Title

10.1  We shall retain legal title to any goods supplied by us until the Invoice Amount (including applicable taxes and shipping costs) for such goods as well as any other claim that Fabory may have against the Customer has been fully settled. Until the title passes to the Customer, the Customer undertakes (a) to handle the goods with care, (b) to store them separately and clearly recognizable as Fabory's property, and (c) not to pledge, encumber or to secure by hypothec such goods other than in the ordinary course of business, including not to pledge, encumber or to secure by hypothec the goods in the course of any financing operations. Fabory hereby reserves, and Customer hereby grants to Fabory, a security interest in all goods supplied by Fabory, together with all proceeds thereof, including insurance proceeds. Such security interest secures all of Customer's obligations arising under these GTS, until all amounts due to Fabory hereunder have been paid in full. Customer agrees upon Fabory's request to sign any security agreements evidencing Fabory's security interest in the goods.

10.2  The Customer must inform Fabory immediately of any claims or attempts by third parties to gain possession of goods for which Fabory has retained sole or joint ownership or a security interest.

10.3  The Customer hereby already grants Fabory the irrevocable right, should the circumstances arise, to have access to places where Fabory's property is located in order to exercise its rights of ownership, in particular to regain possession of the respective goods.

10.4  The Customer shall take reasonable care not to mix Fabory's goods with other products, in order to, inter alia, safeguard quality control criteria and traceability of goods in the production chain. If mixing with other products occurs, Fabory shall be presumed to be – with regard to a value of the mixed goods equal to the Invoice Amount - the co-owner of the mixed products.

10.5  If the goods are amended or processed by or on behalf of the Customer, it shall be assumed that this has been done in agreement with and upon order of Fabory, and Fabory shall gain – with regard to a value of the amended or processed goods equal to the Invoice Amount - joint ownership rights over the newly generated products.

10.6  Where Fabory cannot realize on its security interest or lay claim to its ownership rights because the products have been mixed, processed or acquired, the Customer shall, upon Fabory's request, be obliged to grant Fabory right of distraint over these newly generated products, to the extent permitted by law.

10.7  Fabory may also take back into its possession goods for which Fabory has retained title, if circumstances arise that could give Fabory reason to believe that Fabory will not be paid for the respective goods on time, even if Fabory's payment claim has not yet become due and payable.

10.8  In Quebec, the installment sale provisions of the Civil Code of Quebec (articles 1745 to 1749) apply with necessary modification for the provisions of this Article 10. Further, Fabory reserves its rights to publish a reservation of ownership in respect of any goods supplied, at any time before title passes to the Customer.

 

Article 11: Liability

11.1  EXCEPT AS EXPRESSLY SET OUT IN THE GTS, ALL WARRANTIES WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, ARE SPECIFICALLY DISCLAIMED, EXCEPT WHERE PROHIBITED BY LAW.

11.2  FABORY EXPRESSLY DISCLAIMS ANY LIABILITY FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, FABORY'S LIABILITY IN ALL CIRCUMSTANCES IS LIMITED TO, AND SHALL NOT EXCEED, THE PURCHASE PRICE PAID FOR THE PRODUCT THAT GIVES RISE TO ANY LIABILITY, WHETHER ARISING IN NEGLIGENCE, TORT, STATUTE, EQUITY, CONTRACT (INCLUDING FUNDAMENTAL BREACH), COMMON LAW, OR ANY OTHER CAUSE OF ACTION OR LEGAL THEORY EVEN IF FABORY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FABORY ALSO DISCLAIMS ANY LIABILITY FOR CLAIMS ARISING OUT OF PRODUCT MISUSE, IMPROPER PRODUCT SELECTION, IMPROPER INSTALLATION, PRODUCT MODIFICATION, MISREPAIR OR MISAPPLICATION.

11.3  SAFETY DATA SHEETS ("SDS") for OSHA defined hazardous substances are prepared and supplied by the manufacturers. FABORY MAKES NO WARRANTIES AND EXPRESSLY DISCLAIMS ALL LIABILITY TO ANY CUSTOMER OR USER WITH RESPECT TO THE ACCURACY OF THE INFORMATION OR THE SUITABILITY OF THE RECOMMENDATIONS IN ANY SDS. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY RELIANCE ON OR USE OF ANY INFORMATION, AND FOR USE OR APPLICATION OF ANY PRODUCT. SDS INFORMATION IS AVAILABLE UPON REQUEST BY CALLING 450-629-6900 

 

Article 12 Intellectual Property

         The Customer shall have no right, title, or interest in the trade names, trademarks, trade dress, copyrights, patents, domain names, product names, catalogs or any other intellectual property rights of Fabory, or any trademarks or service marks owned by suppliers to Fabory. All materials contained on our websites are subject to the ownership rights of Fabory and its suppliers and licensors. The Customer shall have no right to copy or use any of the intellectual property of Fabory, its suppliers or licensors without Fabory's permission.

 

Article 13: Anti-Corruption

13.1  Customer is aware that Fabory’s business practices prohibit bribery and corrupt behavior in any form. Customer agrees that it is an independent contractor and it is and shall remain in compliance with all applicable laws that relate to commercial or public sector bribes, money laundering, terrorism (including but not limited to local anti-corruption laws, Canada’s Corruption of Foreign Public Officials Act, the U.S. Foreign Corrupt Practices Act, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the U.K. Bribery Act).

13.2  Customer shall not offer or provide anything of value (gifts, loans, travel, entertainment, or any other similar benefit) either directly or indirectly to any government official for the purpose of influencing any act or decision. This means that Customer cannot pay a gratuity, bribe or inducement to any government official, even if it appears customary or consistent with prevailing business practices. Prohibited payments include, for example, any payment to a government purchasing agent to influence its decision to purchase products from us; any payment to customs officials to expedite the handling of products being imported or to minimize the amount of duty to be paid; any payment to officials to reduce taxes or expedite the resolution of tax matters; any payment of travel expenses; contribute to an election campaign of a candidate for government office, or otherwise give a gift (other than of nominal value) to an official in agency that may regulate our business or who is a current or potential customer or supplier.

 

Article 14: Applicable law and choice of jurisdiction

14.1  Any contracts entered into between us and the Customer shall be governed by the laws of Canada under exclusion of the UN Convention on the International Sale of Goods (CISG), without prejudice to any mandatory conflict of law provisions.

14.2  To the extent permitted by applicable law, the courts in Toronto shall have exclusive jurisdiction with respect to any disputes arising out of or in connection with the relevant contract. Any mandatory statutory provisions regarding the place of jurisdiction remain unaffected.

 

Article 15: General

15.1  Customer shall not assign this agreement or any order, or any interest therein, without the prior written consent of Fabory. Any actual or attempted assignment without Fabory's prior written consent shall entitle Fabory to cancel such order upon notice to Customer.

15.2  The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent non-performance of any such term or condition by the other party. The parties agree that this agreement and all correspondence and all documentation relating to this Agreement, are to be written in English.

15.3  If any portion of these GTS is found to be invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable term shall be severed from these GTS, and the remaining terms and conditions shall be valid and fully enforceable as stated herein.