Standard Terms and Conditions of IPS Material Handling Inc. (referred to below as the "Seller")
1. Basis for contracts
The Seller's deliveries, performances and offers shall be solely on the basis of these standard terms and conditions, which the Customer expressly accepts. The terms and conditions shall apply to all future transactions as well without an explicit agreement. These terms and conditions shall be deemed to be accepted at the latest when the goods or services are accepted. The Buyer's deviating standard terms and conditions are hereby expressly opposed. The Buyer's standard terms and conditions shall not form a component part of the contract even if they are not opposed again in an individual case and shall only be accepted if the Seller has expressly agreed to them in writing.
2. Conclusion of the contract/offers and orders
The Seller's offers are without obligation. They merely represent a request to the buyer to make an offer to buy. This applies as well to all information in price lists, quotations, etc. The contract shall not come into effect until the Buyer places an order (offer) and an authorized representative of the Seller accepts it in writing. If the Seller's acceptance deviates from the order, the appropriate declaration shall be deemed to be a new offer without obligation by the Seller.
Supplements, amendments and ancillary agreements, and information, recommendations, advice and other assurances by the Seller or his employees or authorized third parties shall not be binding unless they are confirmed in writing. Estimates and information on carriage are without commitment in all cases. The Seller reserves the right to carry out changes in the course of the further development of his products, insofar as these are acceptable to the Buyer.
Information in catalogues and quotations are merely descriptions of goods and do not represent warranties of quality. In addition, the properties of samples shall not be regarded as warranted.
Only prices confirmed in writing by the Seller shall be valid. All prices are in Canadian Dollars plus sales tax at the rate applicable on the date of the delivery or other service, unless otherwise noted and agreed upon. If there are more than four months between the order and the delivery the Seller shall be entitled to invoice the price valid on the date of delivery. In this case the Seller shall notify the reasons for the price increase in an understandable way (e.g. increased material purchase prices, increases in wage costs, etc.). If an order is given on call the unit price valid on the date of delivery shall apply for each part shipment. Subsequent requests by the Buyer for changes shall entitle us to adjust the price in each case.
In the framework of contracts for the performance of a continuing obligation we shall be entitled to adjust the prices at any time in accordance with the above provisions.
4. Terms of payment
Invoices shall be due and payable immediately after receipt. The amount shown shall be paid net in 30 days. Deduction of discounts is excluded subject to a written agreement to the contrary. Payments shall not be deemed to be made until they are received in the Seller's bank account.
Bills and cheques shall only be accepted as conditional payment after written agreement and against payment of all charges. Amounts in bills and cheques shall not be credited until the proceeds including incidental expenses are available without reservation.
Goods shall be shipped expressly for the account and at the risk of the Customer. Freight-paid deliveries shall also be at the risk of the Buyer ex works. The risk shall be transferred to the Buyer when the consignment is passed to the persons carrying out the transport. Shipping shall be at the Buyer's cost.
If shipping is impossible without fault, the risk shall be transferred to the Buyer with the notification of readiness to ship. Goods that are not accepted shall be stored for the Buyer's account and at his risk. Unless expressly agreed otherwise the Seller shall determine the transport type and route as the Buyer's representative. The Seller shall insure only on the Buyer's instructions and at his expense.
6. Items made to order
Parts to be made in accordance with samples or drawings or special orders shall be accepted and paid for in all cases unless they have a defect for which the Seller is responsible that cancels out their suitability for the Buyer's purposes. If the suitability for the Buyer's purposes is merely reduced the Buyer may only demand a reduction in the payment but not cancellation of the contract.
7. Delivery period, force majeure
Compliance with agreed delivery periods presupposes the fulfillment of contractual obligations and duties to cooperate by the Buyer. Delivery periods shall be suitably extended on all events and situations whose occurrence is beyond the Seller's control, natural occurrences, official orders, strikes, embargo, lack of raw materials and energy, transport and operational breakdowns and the Seller shall be released from the contractual obligations for the duration of the disturbance and to the extent of its effects. This shall also apply if the circumstances occur at the Seller's suppliers. In cases of this nature the Seller shall also be entitled to withdraw from the contract wholly or partially with regard to the part not yet fulfilled. The Seller shall be entitled to make partial deliveries insofar as this does not result in disadvantages in use for the Buyer. The obligation to deliver shall lapse if the Buyer exceeds his goods credit limit through a call for goods.
Excess or short deliveries of up to 10% of the ordered quantity are customary in the trade and are deemed to be fulfillment in accordance with the contract.
9. Reservation of title
The Seller reserves title to goods sold until full and complete payment of the Seller's claims under the business relationship with the Buyer. The Seller shall be entitled to withdraw from the contract in case of default of payment.
The Buyer is only authorized to dispose of the sold goods in the ordinary course of business.
The reservation of title shall continue in effect if individual claims by the Seller are inserted in a current invoice and the balance is struck and accepted.
If the Buyer processes goods subject to reservation of title into a new movable, processing shall be for the Buyer without the latter being obliged. The new item shall be the property of the Seller. In case of processing, mixing or confusion with goods not belonging to the Seller the Seller shall acquire co-ownership in the new item in the ratio of the invoice values of his goods subject to reservation of title to the total value. The Buyer shall keep the goods subject to reservation of title for the Seller free of charge. He shall insure them in the usual manner against the usual risks such as fire, theft, storm, hail, water.
The Buyer assigns to the Seller as security all claims in the amount of the outstanding invoice value of the goods that accrue to him from the resale of the reserved goods and his claims for compensation to which he is entitled against insurance companies or other liable parties for damage of the type referred to.
If goods are sold in which the Seller has a co-ownership share the anticipatory assignment shall also cover a share of the claim in the amount of the invoice value of the co-ownership share. The Buyer is entitled to collect assigned claims until further notice.
Pledging or assigning the reserved goods or assigned claims as collateral is prohibited. The Seller shall be notified immediately of levies of distress, including the name of the distressed.
The Seller agrees to release the collateral to which he is entitled at the request of the Buyer insofar as its value exceeds the claim to be secured by more than 20%.
We reserve the right to make design changes and to dimensional and colour deviations insofar as these are acceptable to the Buyer and the goods are suitable for the purpose presupposed under the contract.
The Buyer shall examine the goods for obvious defects without delay after the transfer of the risk with the thoroughness that is reasonable under the given circumstances. Any defects that are detected in this way shall be notified in writing to the Seller immediately but not later than 14 days after receipt. All claims based on these defects shall lapse after expiry of this period (time limit on claims).
The guarantee period for companies is one (1) year. The Seller shall have the option of subsequent performance either by taking back the defective item and replacing it with a perfect one or by reworking it. Unless something else results from the nature of the item or the defect or from the other circumstances a reworking or replacement delivery shall be deemed to have failed with the second unsuccessful attempt.
In this case the Buyer may demand a reduction in the price or withdraw from the contract.
Other claims are excluded unless:
1. they are in connection with injuries to life and limb or damage to health or the Seller is
guilty of gross negligence,
2. the Seller has warranted the quality with regard to the defect or it is a matter of fraudulent
If the Buyer does not give the rejected goods to the Seller or to a third party named by the Seller following a corresponding request, the Seller shall have the right to refuse subsequent performance. In addition, in this case the Seller shall be entitled to compensation for the expenses accruing to him through the failure to hand over and for any other pecuniary disadvantages.
The Seller shall be liable in accordance with statutory provisions in cases of intention, gross negligence of statutory representatives or managers as well as on culpable breach of material contractual obligations by the above-mentioned or other employees or representatives. The Seller shall not be liable for breaches of immaterial contractual obligations by other employees or representatives. The Seller shall further not be liable for damage that is not typical for the contract and is therefore unforeseeable. Claims for damages under tort are restricted to cases of intention and gross negligence. This shall also apply to acts by the Seller's vicarious agents. The above limitations of liability shall not apply to damage resulting from injuries to life and limb or health. Mandatory statutory liability provisions, e.g. under the Product Liability Act, are not affected.
12. Contractual exclusion of set-off
Set-off against invoices from the Seller is only permissible with acknowledged or finally and conclusively established counterclaims.
13. Supply risk
The Seller does not assume any supply risk. He shall be entitled to withdraw from the contract if he fails to receive the delivery item in spite of the prior conclusion of appropriate purchasing agreements. This shall not affect the Seller's responsibility for intent and negligence. The Seller shall inform the Buyer without delay if the delivery item will not be available in due time and, if he wishes to withdraw, shall exercise the right to cancel the contract without delay. In case of withdrawal the Seller shall refund the appropriate consideration to the Buyer without delay.
14. Severability clause
If a provision of these Standard Terms and Conditions is or becomes invalid this shall not affect the validity of the remaining provisions.