GENERAL TERMS AND CONDITIONS OF SALE
1. General & Scope
These general terms and conditions of sale (“Terms”) shall apply to the sale of all goods and provision of services by ASW Machinery Ltd., dba Felder Group Canada ("FELDER") to the purchaser (“Purchaser”). Purchaser acknowledges and agrees that these Terms shall constitute part of any final sales contract that may be entered into between Purchaser and FELDER (“Sales Agreement”). In the event of any inconsistency between these Terms and the terms contained in any offer, order confirmation or other document prepared by FELDER (“Additional Documents), the terms contained in Additional Documents shall prevail. These Terms are subject to change at FELDER’s sole discretion at any time. Unless expressly agreed upon in writing, FELDER shall not be bound by any terms and conditions affixed to Purchaser’s purchase order or other procurement documents that are in addition to or inconsistent with these Terms or the Additional Documents. These Terms shall not be modified, supplemented, qualified or interpreted by any trade usage or prior course of dealing not expressly made a part hereof in writing.
2. Quotations & Orders
2.1 All written quotations and offers to sell automatically expire thirty (30) days from the date of the quotation or offer to sell unless otherwise specified in writing.
2.2 All figures, price lists, measurements, dimensions, performance values, samples, statements, technical provisions or specifications, catalogues, brochures, depictions, photographs, images, models, designs, drawings, promotional materials in print or electronic format or other descriptive specifications (“Specifications”) shall only be deemed legally binding elements of the Sales Agreement if expressly referenced therein.
2.3 No order placed by Purchaser shall be deemed to be accepted by FELDER unless and until confirmed in writing by FELDER pursuant to an order confirmation. Subsequent requirements of Purchaser for goods and services not contained in an original offer to sell or Purchaser’s order must be accepted and confirmed in writing by FELDER.
2.4 Before concluding the Sales Agreement, Purchaser must inform FELDER if the goods to be delivered:
a. Are to be used for any purposes other than their intended use;
b. Will be used in unusual conditions or in conditions that place higher demands on the goods or which represent an increased risk of personal injury, an increased hazard, or could cause damage to the environment; or
c. Are intended for processing unusual materials.
2.5 The Purchaser must review each order confirmation. Objections to FELDER’s order confirmation must be received in writing by FELDER within five (5) calendar days from the date of FELDER’s order confirmation. If Purchaser fails to object to the order confirmation within this timeframe, the order confirmation shall be deemed to have been irrevocably accepted by Purchaser.
3. Changes and Cancellations
3.1 No Sales Agreement which has been executed by FELDER may be cancelled or amended by the Purchaser unless approved in writing by FELDER and on the condition that Purchaser shall indemnify FELDER in full and on demand against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by FELDER as a result of the cancellation or change. The purchase price and deadline for the delivery of goods and performance of services shall be adjusted to account for any changes.
4. Prices & Payment
4.1 The price for all goods and services shall be expressly set out in the Sales Agreement. Where no price has been specified, the price shall be based on FELDER’s price list in effect on the date of the delivery of goods or first performance of services.
4.2 FELDER reserves the right, by providing written notice to Purchaser to increase the price of unshipped goods and unperformed services to cover any delay or change in delivery dates, quantities or specification of goods and services occasioned or requested by Purchaser. Objections to FELDER’s price increase must be received in writing by FELDER within a period of fourteen (14) calendar days from the date of the price increase notice. If Purchaser fails to provide a timely objection notice to FELDER, the price increase shall be deemed to have been irrevocably accepted by Purchaser. If Purchaser objects to the price increase within the aforementioned period, FELDER shall have the option of terminating the Sales Agreement without incurring any liability whatsoever to the Purchaser.
4.3 Unless otherwise agreed in writing, the price of goods shall be EXW FELDER’s premises (Incoterms 2020). The price shall be exclusive of packaging, shipping, duties, insurance, applicable taxes, and other costs applicable to delivery of goods.
4.4 Unless otherwise specified in writing by FELDER, all payments shall be in Canadian dollars and must be made directly to FELDER in accordance with the payment options described in FELDER’s order confirmation or invoice. Purchaser shall have no right of deduction, discount or set-off whatsoever, unless otherwise agreed upon in writing by both parties. Regardless of the means of payment, the payment will only be deemed to have been received by FELDER when the full invoice amount has been irrevocably credited to FELDER’s account. The Purchaser shall be solely responsible for any wire charges or other bank fees and must ensure that FELDER receives payment in full of the invoice amount, plus interest, if applicable.
4.5 If Purchaser fails to make payment for the goods and/or services within thirty (30) days of the date of FELDER’s invoice or such other due date as the parties may agree upon in writing, without prejudice to any other right or remedy available to FELDER, FELDER reserves the right to charge interest on the outstanding balance of any overdue accounts at a rate equal to fifteen percent (15%) per annum, accruing daily and payable monthly. Interest shall accrue on overdue interest in the same manner. Where the invoice is payable in installments, FELDER reserves the right to charge interest on overdue installments at the said rate from the date payment is due to the date of payment.
4.6 FELDER may from time to time agree to the delivery of goods and/or performance of services on credit. Where this is the case, if at any time FELDER determines that Purchaser’s financial condition or credit rating does not justify a sale on credit or if Purchaser is at any time in default of any indebtedness or obligation owed to FELDER, then FELDER may:
(i) suspend further delivery of goods and/or performance of services until payment is received in full; and/or
(ii) require cash payment in advance of delivery of goods and/or performance of services; and/or
(iii) refuse to perform services and/or deliver any undelivered goods whether ordered under the Sales Agreement or not, without incurring any liability to Purchaser for nonperformance or non-delivery or any delay in delivery; and/or
(iv) terminate the Sales Agreement. Purchaser agrees to submit such financial information as may be reasonably requested by FELDER from time to time for the establishment and/or continuation of credit terms. Purchaser agrees to pay any and all legal fees associated with payment collection.
4.7 Objections to FELDER’s accounting, account statements, account reconciliations, etc. must be received in writing by FELDER within a period of fourteen (14) calendar days from the date of the invoice or other applicable document. In the event that Purchaser fails to provide objection notice to FELDER within this timeframe, the terms of the invoice or other document shall be deemed to have been irrevocably accepted by Purchaser. Notwithstanding the foregoing, FELDER reserves the right to correct, at any time, any invoicing errors, including calculation errors, which may arise from time to time.
5. Delivery Date & Acceptance of Delivered Goods
5.1 Unless otherwise agreed upon in writing, Purchaser shall take delivery of goods EXW FELDER’s premises (Incoterms 2020) within ten (10) days after FELDER has notified Purchaser in writing that goods are ready for collection (the “Acceptance Deadline”). Selection of the carrier and route of delivery shall be made by FELDER unless specified in writing by Purchaser.
5.2 If the Acceptance Deadline is exceeded by more than three (3) calendar days, this shall constitute a fundamental breach of contract by Purchaser and FELDER may, without prejudice to other legal rights or remedies it may have, either arrange for storage of the goods at the sole risk and expense of Purchaser or arrange for the shipment of the goods to Purchaser, and charge Purchaser for this delivery and for the associated formalities. Failure to take delivery of the goods does not absolve Purchaser of its obligation to pay the purchase price for same.
5.3 FELDER will use commercially reasonable efforts to meet requested dates and times for delivery of goods and/or performance of services. However, specific dates and times will not be guaranteed and time shall not be of the essence unless previously agreed upon in writing by the parties. Compliance with the estimated date of delivery of goods and/or provision of services shall require that all commercial, contractual and technical issues (including design considerations) between Purchaser and FELDER have been settled. If this is not the case, the period for the delivery of goods and/or provision of services shall be extended accordingly. In the event that Purchaser is required to make partial or full advance payment or is required to provide collateral, the delivery dates and periods shall only commence upon receipt of the agreed upon payments and/or security.
5.4 If the delivery of goods or the provision of services is delayed at the request or by fault of Purchaser, Purchaser shall reimburse FELDER for all reasonable costs incurred by FELDER in relation to the delayed acceptance of goods or provision of services (including in respect of any warehousing or storage charges, or additional labor or travel expenses). Purchaser must promptly provide FELDER with written notice of any delay in delivery of goods or provision of services. If Purchaser fails to take delivery of goods within two (2) months after the delivery date stipulated in FELDER’s order confirmation, without prejudice to other legal rights or remedies available to FELDER, FELDER shall be entitled to terminate the Sales Agreement, without incurring any liability or penalty whatsoever to the Purchaser, and either:
a. receive payment of liquidated damages from Purchaser in an amount equal to twenty percent (20%) of the purchase price, provided the goods to be delivered are standard or mass-production products;
b. receive payment of liquidated damages from Purchaser in an amount equal to one hundred percent (100%) of the purchase price if the goods to be delivered are custom made in accordance with specific Purchaser requirements; or
c. sell the goods at the best price readily obtainable, and (after deducting all reasonable storage and selling expenses (including accounting, legal and clerical fees)) account to Purchaser for the excess over the price under Sales Agreement or charge Purchaser for any shortfall below the price under Sales Agreement.
5.5 FELDER shall not be liable to Purchaser for any delay or failure to deliver goods and/or perform services due to any cause beyond FELDER’s reasonable control, including, without limitation, any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, pandemic, illness or injury to workers, delayed or failed deliveries by subcontractors or suppliers, power failure, damage or destruction of production facilities, lighting strike, riot, insurrection, transportation delays or defaults, delay in supply or shortages of fuel, components, parts, raw materials or supplies, labour shortage, acts or omissions of third parties, action of any governmental authority, or any other cause beyond the reasonable control of FELDER (collectively, "Force Majeure"). In such event, FELDER shall promptly provide Purchaser with written notice of the Force Majeure. FELDER's time for delivery of goods and/or performance of services shall be extended for a period equal to the time lost by reasons of the Force Majeure without subjecting FELDER to any liability or penalty. If the Force Majeure event lasts longer than ninety (90) days, FELDER may immediately terminate all or part of the Sales Agreement, without incurring any liability or penalty whatsoever to Purchaser, by providing written notice of such termination to Purchaser.
6. Risk of Loss, Title, Right of Repossession, Insurance & Security Interest
6.1 Unless otherwise agreed upon in writing and subject to the terms hereof, risk of loss transfers to Purchaser on the date the goods have been delivered to Purchaser (the “Transfer Date”). From and after the Transfer Date, Purchaser shall be liable for all loss or damage to the delivered goods, however caused, and assumes all of the obligations and risks of an absolute owner and agrees to indemnify and save harmless FELDER and its assigns from any and all loss or damage to persons or property caused by reason of the ownership, use or operation of the goods. The loss, confiscation or destruction of the goods, however caused, shall not operate to release Purchaser from its obligations hereunder.
6.2 Notwithstanding delivery and transfer of risk, title to and ownership of all goods shall not pass to Purchaser until the purchase price and any other amounts due hereunder (including interest, costs and expenses) have been paid in full to FELDER.
6.3 Without the prior written consent of FELDER, Purchaser agrees that it will not use the goods for leasing purposes, hire or part with possession thereof or remove or permit to be removed the goods from Purchaser’s place of business. Purchaser shall keep all goods free and clear from the rights of third parties and shall not lien, pledge or encumber the goods in any manner prior to making payment in full. If any lien, encumbrance or other security interest is acquired or registered by any third party in the goods, FELDER shall be entitled to pay off the third party, discharge the lien, encumbrances or other security interest, and invoice Purchaser in respect of any costs or expenses incurred. Any overdue invoices shall bear interest at a rate equal to fifteen percent (15%) per annum.
6.4 FELDER reserves the right to demand the return of any goods that have not been paid in full by Purchaser at any time after FELDER has notified Purchaser that it is in default of its obligations hereunder. If Purchaser fails to do so within ten (10) calendar days of the date of FELDER’s demand letter, Purchaser hereby agrees that FELDER may enter upon any premises of Purchaser or any third party where goods are stored or installed and disconnect, dismantle, remove and repossess goods at the expense of Purchaser. If goods are resold or otherwise disposed of by Purchaser, Purchaser will ensure that the entire proceeds of the sale are held in trust on behalf of FELDER and shall not be co-mingled with any other monies or paid into an overdrawn bank account and shall at all times be identifiable as monies belonging to FELDER.
6.5 Purchaser represents and warrants to FELDER that it is solvent. Purchaser hereby grants FELDER a continuing first priority security interest in and to the goods sold (commonly in the form of a purchase money security interest in Canadian jurisdictions outside of Quebec) and all of its parts and components, as well as any accessions, accretions, additions, substitutions, modifications or replacements thereto, together with proceeds derived from any of the foregoing and any monies payable to Purchaser derived from the use of the goods (collectively, the “Collateral”). Such security interest shall continue to apply to the Collateral notwithstanding that it may be or become a fixture. Purchaser authorizes FELDER to make any and all registrations or filings that FELDER deems necessary or advisable to perfect and preserve such security interest including, without limitation, real and personal property security filings or notices thereof. Purchaser shall take all actions that FELDER requests to perfect, obtain and maintain its first priority security interest. To the extent permissible by law, Purchaser waives any requirement that it be provided with a copy of any verification or financing statement filed in connection with the foregoing security interest or any renewal thereof
6.6. If the goods come into the possession of FELDER through repossession, voluntary surrender or otherwise, FELDER shall be entitled to re-sell the goods to its customers. In this case all payments previously received from Purchaser shall remain the property of FELDER as compensation for use and depreciation of the goods. Alternatively, FELDER may elect to re-sell the goods on behalf of Purchaser at a public or private sale in such manner and for such amount and upon such terms as FELDER may, in its sole discretion and acting reasonably, deem appropriate. FELDER shall be entitled to warehouse, store, repair and recondition the goods. Where FELDER re-sells the goods on behalf of Purchaser, FELDER may accept other goods from purchasers as partial payment of the sale price but, with respect to any trade-in, Purchaser shall only be credited with the actual proceeds when realized and received in cash through the sale of such trade-in after deduction of all expenses, charges and commissions in connection with the repairing and re-sale of such trade-in; FELDER may bid and purchase on any sale of trade-ins. From the proceeds of any sale, FELDER may deduct all expenses incurred in relation to the retaking, housing, storing, repairing, reconditioning and selling of the goods (including accounting, legal and clerical fees). Purchaser hereby waives all claims for damages arising from the re-possession, removal or resale of the goods as against FELDER or its assigns.
6.7 Purchaser shall at all times maintain the goods in good condition and repair and shall fully insure the goods against loss, collision, fire, water damage, theft or any other insurable risks in an amount no less than the value of the purchase price until FELDER has been paid in full therefor, or until the goods have been returned to FELDER. FELDER shall be permitted to inspect the goods upon requesting to do so in writing. The insurance policy shall contain a standard lender’s loss payable endorsement in favor of FELDER and shall provide that the policy shall not be cancelled, and the coverage shall not be reduced, without at least ten (10) calendar days prior written notice to FELDER. Upon FELDER’s request, Purchaser shall provide evidence of the insurance coverage. Should Purchaser fail to insure and furnish evidence thereof as required, FELDER may, at its option, insure the goods and add the premium to the amount remaining payable by Purchaser hereunder.
7. Preparation of Installation Work & Performance of Services in General, etc.
The job specific scope of services to be performed shall be set out in the Sales Agreement. Purchaser acknowledges that no installation, training or education is contracted for or purchased hereunder. If FELDER offers or gives technical advice or performs any installation or training in connection with the use of any of the goods, such advice or training will be provided only as an accommodation to Purchaser and FELDER shall have no responsibilities or liabilities whatsoever for the content or use of such advice. If the agreed upon scope of services includes the installation, training, assembly and/or commissioning of the goods or similar work, Purchaser shall provide, at its sole cost and expense, all necessary assistance to enable FELDER’s personnel to perform the contracted services. Such assistance shall include but not be limited to:
(i) ensuring that all preparatory work is completed at the job site prior to the arrival of FELDER’s service personnel and ensuring that such personnel has proper site access;
(ii) taking all necessary precautions to ensure the health and safety of FELDER’s service personnel;
(iii) ensuring that, if required, a sufficient number of qualified staff are in attendance at all times to support FELDER’s service personnel;
(iv) ensuring that all required electrical connections, pneumatic or dust extraction services, and sufficient lighting are made available at the job site;
(v) advising FELDER in writing of any known or potential risks, dangers or hazards which may result in project delays, damage to, or loss of, property, or personal injury or death;
(vi) ensuring that all of FELDER’s equipment and other service items are stored in a secure and dry location at the job site ; and
(viii) ensuring that FELDER’s personnel have access to washroom and change room facilities that are maintained and serviced in accordance with applicable law. FELDER shall be entitled to refuse to perform the services without liability or penalty, if the provisions of this section are not strictly complied with by Purchaser. Purchaser agrees to reimburse FELDER for all applicable costs and expenses incurred by FELDER arising from Purchaser’s failure to prepare the job site for the provision of services in accordance with these Terms and the Sales Agreement.
8. Acceptance Protocol
8.1 The parties shall be free to establish a joint acceptance protocol in order to ensure that the terms of the Sales Agreement have been correctly fulfilled; particularly where installation work is included in the Sales Agreement.
8.2 If no acceptance date has been agreed upon, FELDER may advise Purchaser of the date of the acceptance test in writing.
8.3 Purchaser shall bear all costs associated with the acceptance testing (including the costs for test materials and supplies). FELDER shall bear the costs for its personnel.
8.4 The results of the acceptance testing shall be recorded in a written report and signed by both parties. Any product defects or deficiencies must be noted in the report.
8.5 The delivered goods shall be deemed accepted by Purchaser if:
- The delivered goods have no material defects and the acceptance criteria set out in the joint acceptance protocol (if applicable) has been met;
- The acceptance test could not be carried out due to the fault of Purchaser; or
- Purchaser has ordered the goods for its own custom commercial application purposes and standard testing cannot be performed.
8.6 If during the acceptance test, the delivered goods are determined to be other than as described in the Sales Agreement, FELDER shall promptly remedy the defect or deficiency. Once FELDER has remedied the defect or deficiency, the parties shall both sign a certificate of final acceptance confirming that the requirements of the joint acceptance protocol have been fulfilled.
8.7 If the parties fail to establish a joint acceptance protocol, within five (5) calendar days of the date of FELDER’s written request to do so, Purchaser shall inspect the goods and deliver to FELDER a written notice (“Deficiency Notice”), if applicable, containing the full details of any alleged defect or nonconformity. Upon receipt of the Deficiency Notice, FELDER shall promptly investigate and shall make the final determination as to whether its goods are defective or non-conforming. FELDER shall not be responsible for goods damaged during transport unless otherwise agreed upon in writing. Purchaser’s exclusive remedy and FELDER’s entire liability to Purchaser in the event of a rejection pursuant to a Deficiency Notice shall be expressly limited to either the prompt replacement of the goods, the repair of any defect or non-conformity or, at FELDER’s option, the issuance of credit or refund for the purchase price of the defective or non-conforming goods. Notwithstanding the foregoing, in the event that Purchaser fails to provide a Deficiency Notice within the aforementioned period, Purchaser will be deemed to have irrevocably accepted the goods.
8.8 Certain goods will not ne be subject an acceptance protocol. FELDER will determine at it sole and entire discretion which goods require an acceptance protocol.
9. Permits, Compliance and Safety Features
Unless otherwise agreed upon in writing, FELDER is not responsible for obtaining any permit, inspection, license or other authorization that is required for the installation or operation of the goods purchased by the Purchaser. Any modifications of the goods that are required as a result of applicable safety inspection programs shall be undertaken at the sole cost of Purchaser. FELDER does not represent or warrant that the goods will conform to any law, ordinance, regulation, code or standard. Purchaser shall operate the goods properly and according to FELDER’s operating instructions and shall not remove or change any safety device, warning or operating instructions that FELDER places on the goods.
10. Limited Warranty
10.1 FELDER warrants that each machine branded with Felder / Format4, under normal use and conditions, will comply in all material respects with Felder's applicable written technical documentation for such product for a period of twelve (12) months with respect to all electrical and mechanical parts, and six (6) months with respect to labour. FELDER shall have the right to make substitutions and modifications from time to time in the specifications of the goods.
10.2 FELDER warrants that each machine branded with Hammer brand product, under normal use and conditions, will comply in all material respects with FELDER's applicable written technical documentation for such product for a period of twelve (12) months with respect to all electrical parts and mechanical parts.
10.3 FELDER shall provide a six (6) year (or max. 10,800 operating hours) warranty for the tilting segment “Easy-Glide”
10.4 FELDER shall provide a ten (10) year (or max. 18,000 operating hours) warranty for the sliding table control system “X-Roll” branded with FELDER/ Format4, excluding roll cages and scrapers.
10.5 Any adjustments or modifications are not subject to FELDER’s limited warranty once checked, confirmed and signed off by the Purchaser. Return trips required because Purchaser is not ready with materials, lighting, power, air and dust extraction, will be charged a full return trip. FELDER needs the undivided attention of the person being trained until the FELDER service technician is happy with the trainee’s level of understanding. If not, the warranty will be void. It is the responsibility of the user to understand basic woodworking machinery settings and procedures and to properly maintain the equipment in accordance with the standards provided in the operating manual. Installation and calibration service can be offered as an option, please discuss with your representative.
10.6 Operator errors do not include deliberate acts, which harm the machinery or use the machinery outside of the manufacturer's specifications or intended purposes.
10.7 FELDER shall, at its sole option and discretion, either;
(i) promptly replace or repair any defects or non-conformity and correct or re-perform the services provided; or
(ii) issue a credit or refund for the purposes of covering the warranty claim. All warranty repairs or replacements, and any services that have been re-performed or corrected under warranty, shall only be warranted for the balance of the original Warranty Period.
10.8 This limited warranty excludes normal wear & tear and ordinary deviations in size, weight or quality, machine maintenance, operator error, machine and tooling set-up and assembly and alignment, and such other exclusions as may be set out in a policy provided with the goods are not covered under warranty. It is the responsibility of the user to understand basic woodworking machinery settings and procedures and to properly maintain the equipment in accordance with the standards provided in the operating manual. Installation and calibration service can be offered as an option. Purchaser to discuss with its representative.
Warranty coverage for goods manufactured by third party suppliers, which are not part of the Felder Group, are according to their individual standard warranty terms.
10.9 THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY. NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE SHALL APPLY. FELDER DOES NOT WARRANT ANY GOODS OR SERVICES OF OTHERS, WHICH PURCHASER HAS DESIGNATED. FELDER DOES NOT ASSUME, NOR DOES IT AUTHORIZE ANY PERSON TO ASSUME, ON ITS BEHALF, ANY OTHER OBLIGATION OR LIABILITY.
11. Limitation of Liability
11.1 FELDER’S LIABILITY ON ALL CLAIMS OF ANY KIND, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ALL LOSSES OR DAMAGES ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THESE TERMS OR THE SALES AGREEMENT, OR FROM THE PERFORMANCE OR BREACH THEREOF, SHALL IN NO CASE EXCEED THE PURCHASE PRICE ALLOCABLE TO THE SPECIFIC GOODS OR SERVICES THAT GIVES RISE TO THE CLAIM. ALL SUCH LIABILITY SHALL TERMINATE UPON THE EXPIRATION OF THE WARRANTY PERIOD SPECIFIED ABOVE.
11.2 IN NO EVENT, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL FELDER, ITS EMPLOYEES, AGENTS, SUPPLIERS AND AFFILIATES BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF ANY PROPERTY, LOSS OR DAMAGE OF MATERIALS, COST OF CAPITAL, COST OF PURCHASED POWER, INSURANCE COSTS, BUSINESS INTERRUPTION COSTS, DOWNTIME COSTS, INJURY TO PERSON OR PROPERTY OR DEATH, OR CLAIMS OF CUSTOMERS OF PURCHASER FOR SUCH DAMAGES OR LOSSES, AND PURCHASER WILL INDEMNIFY FELDER, ITS EMPLOYEES, AGENTS, SUPPLIERS AND AFFILIATES AGAINST ANY SUCH CLAIMS FROM PURCHASER'S CUSTOMERS.
11.3 Any action or suit by the Purchaser against FELDER relating to these Terms, or Sales Agreement or any transaction in connection therewith must be brought within the Warranty Period. The parties hereto acknowledge and agree that this is a commercial transaction.
Purchaser shall indemnify, defend and hold harmless FELDER from and against all claims, demands, causes of action (including third-party claims), losses, damages, expenses (including consequential and incidental damages, court costs and attorney fees) and liabilities of every kind and nature that FELDER incurs as a result of Purchaser’s breach of its obligations under the Sales Agreement and/or these Terms.
13. Confidentiality & Intellectual Property
All intellectual property, Specifications or other information or documentation (whether communicated verbally, in writing, electronic format or otherwise) supplied by FELDER in connection herewith shall be treated as strictly confidential by Purchaser and must not be made available to any third party, both prior to and after execution of the Sales Agreement and delivery of goods and/or provision of services, without the prior written consent of FELDER. FELDER expressly reserves all right, title and interest in any intellectual property, documents, Specifications, and other technical information provided to Purchaser in connection with the Sales Agreement, and Purchaser shall return same to FELDER upon request.
14. Compliance with Laws
Purchaser shall comply with all applicable laws and regulations, including trade, economic, or financial restrictions or trade embargoes and any amendments thereto (collectively, the “Laws”) imposed by any applicable governmental authority, including, where applicable, Canada, the United States and the European Union. FELDER shall not be liable, and Purchaser agrees to hold harmless and indemnify FELDER, for any breach of such Laws. Purchaser shall not, except as otherwise permitted under applicable Laws, transship, re-export, or otherwise divert goods purchased from FELDER. If applicable, Purchaser undertakes to provide all information and documentation necessary for export, shipment and import to FELDER in a timely manner. FELDER shall not be liable, and Purchaser shall hold FELDER harmless, for delays or any other losses resulting from Purchaser’s failure to provide accurate information and documentation, export/import reviews, or any related permitting procedures in a timely manner. To the extent permitted by law, Purchaser shall, promptly upon becoming aware, provide to FELDER details of any claim, action, suit, proceedings or investigation against it with respect to the Laws brought by any enforcement authority. In the event that FELDER should believe, acting in good faith, that Purchaser has violated, or is under investigation for violating, any Laws, or if Purchaser is identified on any applicable sanctions list, FELDER shall have the immediate right to terminate its relationship and/or any Sales Agreement with Purchaser without liability.
15. Performance Default, Termination, Bankruptcy and Insolvency
15.1 If Purchaser defaults in performing any of its obligations to FELDER (including any failure to pay amounts hereunder when due) under the Sales Agreement and/or these Terms or any other agreements, FELDER may, at its option and sole discretion, and without incurring any liability whatsoever to Purchaser, elect to terminate the Sales Agreement and any or all other agreements with Purchaser. FELDER shall have a right to all damages sustained by it as a direct or indirect result of Purchaser’s default of the Sales Agreement and/or these Terms, including loss of profits. FELDER shall also, in addition to any rights or remedies provided herein, have all of the rights and remedies with respect to defaults as may be provided for under the laws of the particular jurisdiction in which the transaction occurred.
15.2 If Purchaser should be insolvent, threaten to cease or actually cease to carry on business, or be the subject of any proceedings under bankruptcy, insolvency, reorganization or arrangement statute or law, such act shall, at FELDER’s option, be deemed a default under these Terms, and FELDER may elect to cease performing and terminate the Sales Agreement with respect to any services not performed and goods not delivered or received prior FELDER making such an election. All of the foregoing shall be without prejudice to the rights and remedies of FELDER set forth herein (including the right to repossess the goods) or available under applicable law.
Any notice, approval, consent, waiver, or other communication to be given hereunder shall be in writing and shall be deemed to be given, if delivered personally or sent by registered mail, in which case such notice, approval, consent, waiver or other communication shall be deemed to be received on the second business day following the mailing thereof by registered mail to:
ASW Machinery Ltd., c.o.b. as Felder Group Canada
1745 Meyerside Drive, Units 4/5/6
L5T 1C6 Mississauga, ON L5T 1C6
and to Purchaser at such mailing address provided by Purchaser.
18. Waiver, Severability, Binding Effect & Entire Agreement
18.1 No amendment or waiver by FELDER of any provision of these Terms or any Sales Agreement is effective unless set forth in writing and signed by of an authorized officer of FELDER. No failure to exercise, or delay in exercising, any provision or right granted thereby of these Terms or any Sales Agreement shall be construed as waiver thereof.
18.2 In the event that any of the warranties, representations or covenants or any portion of them contained in these Terms or the Sales Agreement are unenforceable or are declared invalid for any reason whatsoever, such unenforceability or invalidity shall not affect the enforceability or validity of the remaining terms or portions of these Terms or the Sales Agreement, and such unenforceable or invalid warranty, representation or covenant or portion thereof shall be severable from the remainder of these Terms or the Sales Agreement.
18.3 The provisions of these Terms and the Sales Agreement shall bind and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and (subject to any restrictions or assignment hereinabove set forth) assigns.
18.4 These Terms, the Sales Agreement and any document relating hereto contain the entire agreement between Purchaser and FELDER and shall not be altered or amended except by written instrument signed by both parties.
Purchaser may not assign, transfer or dispose of any of its rights and obligations under these Terms or Sales Agreement either in whole or in part, without the prior written consent of FELDER, which consent shall not be unreasonably withheld. FELDER shall have the right to assign the Sales Agreement, together with FELDER’s title in, and ownership of the goods, and in the event of such assignment FELDER shall not be deemed the agent of the assignee for any purposes.
All parties acknowledge that the present Terms, and all invoices, documentation, notices, and judicial proceedings entered into, given or instituted pursuant hereto, or relating directly or indirectly hereto, be drawn up in English. Les parties reconnaissent avoir exigé la rédaction en anglais des présentes conditions de vente ainsi que des tous documents, factures, avis et procédures judiciaires qui pourront être exécutés, donnés ou intentés à la suite de ou ayant un rapport direct ou indirect avec les présentes.
21. Applicable Law & Jurisdiction
These Terms, the Sales Agreement and any document relating thereto, shall be governed by and interpreted according to the laws of the Province of Ontario and the federal laws of Canada, excluding the United Nations Convention on the International Sale of Goods. Either party shall bring any action that arises out of or relates to the Sales Agreement and/or these Terms in any court that has jurisdiction over the subject matter in Ontario. Notwithstanding the foregoing, nothing contained herein shall prevent FELDER from seeking injunctive or other equitable relief in any court of competent jurisdiction.