Terms and Conditions of Sale
These Terms and Conditions of Sale together with Buyer's Credit Application Terms and Conditions (if applicable), which are incorporated herein by reference, are between Marks Supply Inc., and Buyer, and form the entire agreement between Marks Supply Inc. and Buyer and apply to all transactions between Marks Supply Inc. and Buyer unless otherwise specifically agreed to in writing. Buyer acknowledges that standard business forms of Buyer, including purchase orders and requests for proposal may be used in the ordinary course of business between Marks Supply Inc. and Buyer, but that such standard business forms will only be used to define the description, quantity, price and destination of goods to be sold, supplied or delivered by Marks Supply Inc. to Buyer. All prior oral or written agreements, including but not limited to Buyer's 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 Marks Supply Inc.. Buyer will be deemed to have accepted these Terms and Conditions of Sale if any goods or services are sold, supplied or delivered by Marks Supply Inc. to Buyer or an invoice is delivered by Marks Supply Inc. to Buyer in respect of such goods or services.
Acceptance of Orders
All orders are subject to acceptance by Marks Supply Inc., 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 Marks Supply Inc. and payment by Buyer of all applicable cancellation or re-stocking fees. Special order items may not be cancelled or returned and no refunds will be issued.
All prices are subject to change unless otherwise noted on Marks Supply Inc.'s quotation. Buyer will be invoiced at prices in effect at the time of shipment. All taxes, transportation costs, duties and other charges are in addition to quoted prices
Credit accounts are due and payable Net 30th day following date of invoice unless otherwise agreed upon. A service charge of 1.5% per month (18%) per annum) applies to past due accounts. The Customer acknowledges that if the business is a partnership, all indebtedness incurred is joint and several. The amount of credit granted may be changed or credit withdrawn at any time at the discretion of Marks Supply Inc
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.
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 or signs a delivery receipt. Marks Supply Inc. will make a good faith effort to complete the delivery of all goods ordered by Buyer as indicated by Marks Supply Inc. in writing; provided, however, that Marks Supply Inc. 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 Marks Supply Inc., including but not limited to as a result of Marks Supply Inc.'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 Marks Supply Inc..
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 Marks Supply Inc. 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 Marks Supply Inc. 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.
Items which are not shipped are back-ordered for future shipment unless Buyer cancels its order in accordance with these Terms and Conditions of Sale.
Buyer may return any goods which Marks Supply Inc. stocks and which are not special order items if: (a) it is in new condition, suitable for resale in its undamaged original packaging and with all original parts; and (b) 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 by Marks Supply Inc.. Special orders or non-stock items may be returned if the manufacturer is willing to accept the return.
Buyer is not entitled to set-off any amounts due to Marks Supply Inc. by any amount due by Marks Supply Inc. to Buyer in connection with any transaction governed by these Terms and Conditions ofSale.
Buyer acknowledges and agrees that, in the event that Buyer purchases goods from Marks Supply Inc. and supplies or incorporates such materials in respect of an improvement pursuant to the applicable provincial construction or builder's lien legislation, such goods will be deemed to have been purchased pursuant to a prevenient arrangement and that one continuing contract is deemed to be in place.
Exclusion of Warranty and Limitation of Liability
Marks Supply Inc. warrants only its title to goods sold, supplied or delivered to Buyer. All other warranties are those of the relevant manufacturer. Marks Supply Inc. assigns to Buyer any warranty provided by its suppliers and by the manufacturer. Buyer waives any right to legal action against Marks Supply Inc. for damage caused by the goods sold, supplied or delivered by Marks Supply Inc., which includes and not limited to environmental damages. Any warranty is void if there has been misuse, accident, modifications, unsuitable physical or operating environment, improper maintenance, storage or installation. Buyer's sole and exclusive remedy will be the repair, replacement or refund of the purchase price paid for product returned during the relevant manufacturer's warranty period and acceptance of warranty clcim by the manufacturer.
MARKS SUPPLY INC. DISCLAIMS ALL OTHER EXPRESSED OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. MARKS SUPPLY INC. WILL NOT, IN ANY CIRCUMSTANCES, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, LIQUIDATED OR CONSEQUENTIAL DAMAGES SUFFERED BY BUYER AND IN NO EVENT WILL MARKS SUPPLY INC.'S LIABILITY, IF ANY, EXCEED THE NET SALES PRICE OF THE GOODS SOLD, SUPPLIED OR DELIVERED TO BUYER.
If Buyer is in default of these Terms and Conditions of Sale, Marks Supply Inc. 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 Marks Supply Inc.; (b) Buyer fails to give a required notice to Marks Supply Inc.; (c) the Buyer is insolvent or the Buyer fails to pay debts as they come due.
Buyer shall indemnify, hold harmless and defend Marks Supply Inc. and its 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, liability of any nature (including the violation of any applicable laws or regulations in connection with the sale, transportation, installation, use or repair by Buyer of the goods sold, supplied or delivered by Marks Supply Inc.), costs, or expenses including reasonable legal fees to the extent caused by the negligent act or omission or willful misconduct of or breach of these Terms and Conditions of Sale by Buyer.
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 Marks Supply Inc. 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 Marks Supply Inc., 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 Marks Supply Inc.
These Terms and Conditions of Sale are governed by the laws of the province of Ontario and the federal laws of Canada applicable therein without regard to conflict of law provisions 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 Marks Supply Inc. within the applicable statutory period, but in no event more than one (1) year after the date of the relevant invoice.