Last Updated: December, 2018
These Terms and Conditions of Sale together with the terms and conditions of any credit application (which, if applicable, are incorporated herein by reference) are between James Electric Motor Services Ltd., a subsidiary of Wolseley Canada Inc., and its affiliates, successors and assigns (collectively, “James Electric”) and you (“Buyer”) and apply to all transactions between James Electric and Buyer unless otherwise specifically agreed to in writing. Buyer acknowledges that any standard business forms of Buyer, including purchase orders and requests for proposal may be used in the ordinary course of business between James Electric and Buyer, but that such standard business forms will only be used to define such information as the description, quantity, price and destination of products to be sold, supplied or delivered by James Electric to Buyer. All prior oral or written agreements, including but not limited to any purchase order, which are different from or purport to be in addition to these Terms and Conditions of Sale are not applicable and are not binding on James Electric. Buyer will be deemed to have accepted these Terms and Conditions of Sale if any products or services are sold, supplied or delivered by James Electric to Buyer or an invoice is delivered by James Electric to Buyer in respect of such products or services.
2. ACCEPTANCE OF ORDERS
All orders are subject to acceptance by James Electric, which acceptance is contingent on adequate supply and, if applicable, credit approval of Buyer.
Buyer may not cancel, change or modify an order without the written consent of James Electric and payment by Buyer of all applicable cancellation and/or re-stocking fees. Special order items may not be cancelled or returned and no refunds will be issued on account thereof.
All prices are subject to change from time to time otherwise noted. Buyer will be invoiced at prices in effect at the time of shipment. All orders are subject to applicable taxes, shipping and handling costs and other similar charges and are in addition to quoted prices.
Terms of invoice payment are net 30 days. In the event Buyer fails to make any payment to James Electric when due, Buyer’s entire account(s) with James Electric will become immediately due and payable without notice or demand and all past due amounts will be subject to a service charge accruing at a rate of 2% per month, calculated daily and compounded monthly (26.82% per annum) or the highest rate permitted by law, whichever is lower. All returned cheques are subject to a $25.00 processing fee. If Buyer is in default for non-payment, then in addition to any other remedies available to James Electric, Buyer agrees to pay and shall indemnify and hold harmless James Electric in respect of such interest together with all of the costs, losses, charges, expenses and liabilities of James Electric related or incidental to its collection efforts or the enforcement of any of its rights in connection with such default (including legal fees). If a Buyer’s credit account is overdue, James Electric reserves its right to suspend Buyer’s credit, place Buyer’s account on COD or withhold shipments. James Electric will grant a lien waiver only to the extent that payment is received and not avoidable as a bankruptcy preference. Invoices and packing slips will both be received at time of purchase or time of delivery, as applicable.
All orders are shipped F.O.B. point of shipment. Risk of loss will transfer to Buyer upon tender of goods to Buyer, Buyer’s representative or common carrier. The cost of any special packaging or handling caused by Buyer’s requirements or requests will be added to the amount of Buyer’s order. If Buyer causes or requests a delay of shipment, or if James Electric ships or delivers an order erroneously as a result of inaccurate, incomplete or misleading information supplied by Buyer or its agents or employees, all storage and other additional costs and risk will be borne by Buyer.
All delivery dates are estimates only. Delivery to the job site or other location indicated by Buyer constitutes delivery to Buyer, regardless of whether Buyer or Buyer’s agent is at such location at the time of delivery of sings a delivery receipt. James Electric will make a good faith effort to complete the delivery of all goods ordered by Buyer as indicated by James Electric in writing; provided, however, that James Electric assumes no responsibility or liability and will not accept any back charge for any loss or damage due to delay or inability to deliver, whether or not such loss or damage was made known to James Electric, including but not limited to as a result of James Electric’s non-performance caused by an act of God, war, labour disputes, civil unrest, accidents, the inability to obtain materials, delays of carriers, contractors or suppliers or any other causes of any kind which is beyond the control of James Electric.
8. BACK ORDERS
Items which are not shipped are back-ordered for future shipment unless Buyer cancels its order, in whole or in part, in accordance with these Terms and Conditions of Sale.
9. INSPECTION AND ACCEPTANCE
Buyer shall examine all goods upon receipt and prior to installation. All claims for damage, shortage, errors in shipment or improper delivery must be made to James Electric, in writing, within five (5) business days of delivery, after which date Buyer will be deemed to have irrevocably accepted the goods, if not previously accepted, and will have no right to reject the goods or to revoke acceptance. Buyer must make any claims for billing errors or adjustments to James Electric in writing within ten (10) business days from the invoice date. Claims not received in writing within such period of time will be waived by Buyer.
Buyer may return any goods which James Electric stocks and which are not special order items if: (i) it is in new condition, suitable for resale in its undamaged original packaging and with all original parts; and (ii) it has not been used, installed, modified, rebuilt, reconditioned, repaired, altered or damaged. All returns are subject to a 25% re-stocking fee, unless otherwise agreed to in writing by James Electric. Special orders or non-stock items may only be returned if the manufacturer is willing to accept the return.
Buyer is not entitled to claim any back charges or to set-off any amounts due to James Electric by any amount that may be due by James Electric to Buyer in connection with any transaction governed by these Terms and Conditions of Sale.
12. BUILDER’S LIENS
Buyer acknowledges and agrees that, in the event that Buyer purchases products from James Electric and supplies or incorporates such materials in respect of an improvement pursuant to the applicable provincial construction or builder’s lien legislation, James Electric reserves its rights under such legislation and Buyer further agrees that such products will be deemed to have been purchased pursuant to a prevenient arrangement and that one continuing contract is deemed to be in place.
James Electric warrants only title to products sold, supplied or delivered to Buyer. All other warranties are those of the applicable manufacturer. James Electric assigns to Buyer any warranty provided by its suppliers and by the manufacturer. Buyer waives any right to legal action against James Electric for damage caused by the products sold, supplied or delivered by James Electric, which includes and not limited to environmental damages. Any warranty is void if a product is subject to misuse, modifications, unsuitable physical or operating environment, improper use or maintenance, storage, application or installation. All services provided by James Electric are warranted for [a minimum period of 90 days unless longer duration is otherwise specified in writing.] Buyer’s sole and exclusive remedy in respect of any product that does not meet the foregoing limited warranties will be the repair, replacement or refund of the purchase price paid for product returned during the relevant manufacturer’s warranty period or, in the case of service, the reperformance of such service. All warranty claims are subject to inspection and approval by James Electric and/or the applicable manufacturer. JAMES ELECTRIC DISCLAIMS ALL OTHER WARRANTIES NOT SPECIFICALLY PROVIDED FOR HEREIN, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
14. LIMITATION OF LIABILITY
IN NO EVENT WILL THE LIABILITY OF JAMES ELECTRIC, IF ANY, EXCEED THE NET SALES PRICE OF THE PRODUCTS SOLD, SUPPLIED OR DELIVERED TO BUYER AND JAMES ELECTRIC WILL NOT, IN ANY CIRCUMSTANCES, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, LIQUIDATED OR CONSEQUENTIAL DAMAGES SUFFERED BY BUYER.
If Buyer is in default of these Terms and Conditions of Sale, James Electric may, at its option, cancel any unexecuted portion of any order to which these Terms and Conditions of Sale apply and/or exercise any right or remedy which may be available to it at law. Buyer will be in default under these Terms and Conditions of Sale if: (a) the Buyer fails to perform any covenant, term or condition contained herein or breaches any representation or warranty given by Buyer to James Electric; (b) Buyer fails to give a required notice to James Electric; (c) Buyer is insolvent or fails to pay its debts as they come due or Buyer makes an assignment for the benefit of its creditors, or a receiver or receiver and manager is appointed for Buyer or for any of the products ordered pursuant to these Terms and Conditions of Sale, or if any petition is filed to adjudicate Buyer bankrupt.
Buyer shall indemnify, hold harmless and defend James Electric, its affiliates and their respective employees, officers, directors and agents from and against any action, cause of action, judgment or claim for damages to property (including environmental damages) or bodily injury, loss of life or any other liability, cost or expense of any nature as a result of the breach of any applicable laws or regulations or these Terms and Conditions of Sale, in connection with the installation, use or repair by Buyer of the products sold, supplied or delivered by James Electric.
These Terms and Conditions of Sale will be construed as if prepared jointly by the parties hereto and any uncertainty or ambiguity will not be interpreted against any one party. If any of the provisions contained in these Terms and Conditions of Sale are held to be unenforceable then such provision will be given effect in such reduced form as may be decided by a court of competent jurisdiction; provided, however, that if any provision should be declared unenforceable or invalid for any reason, such unenforceable or invalid provisions will be severed from the remainder of these Terms and Conditions of Sale without affecting the enforceability or validity of the remaining provisions.
The failure of James Electric to insist upon the strict performance of any of these Terms and Conditions of Sale will not be deemed to be a waiver of any of the right or remedies of James Electric, nor of its right to insist upon strict performance of such term or of any other term in the future. No waiver of any of these Terms and Conditions of Sale will be valid unless in writing signed by James Electric.
19. GOVERNING LAW
These Terms and Conditions of Sale are governed by the laws of the province in which the Buyer transacts business with James Electric and Buyer hereby irrevocably attorns to the jurisdiction of the courts of such province. All actions, regardless of form, arising out of or related to a transaction governed by these Terms and Conditions of Sale must be brought against James Electric within the applicable statutory period, but in no event more than one (1) year after the date of the relevant invoice.