These Terms and Conditions constitute a binding contract between Buyer and Seller and are referred to herein as either these “Terms and Conditions” or this “Agreement”. Buyer accepts these Terms and Conditions by making a purchase from or placing an order with Seller or otherwise requesting Products or engaging Seller to perform or procure any Services (as these and all capitalized terms are defined in these Terms and Conditions). If Buyer is a corporation or other entity, the person entering into this Agreement on behalf of Buyer is authorized to do so.
These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions in effect at the time Buyer places an order or otherwise purchases Products and/or Services will govern the order in question, unless otherwise agreed by Buyer and Seller.
1. DEFINED TERMS.
As used in these Terms and Conditions, the term “Buyer” refers to the purchaser of the Products and/or Services. The term “Seller” refers to Crown Lift Trucks ULC and any entity that it controls, is controlled by, or is under common control with. The term “Products” means any equipment, parts and/or any other products or accessories purchased under this Agreement. The term “Services” refers to any maintenance or other services provided to Buyer under this Agreement.
2. MANUFACTURER’S LIMITED WARRANTY.
The only warranties applying to the Products are the limited warranties offered by the manufacturer of the Products (the “Manufacturer’s Limited Warranty”), if any. If Buyer or Buyer’s agent elects to make any repairs or services, or permits any repairs or services to be made to the Products, contrary to the terms and conditions of the applicable Manufacturer’s Limited Warranty, then the Manufacturer’s Limited Warranty will be void.
3. SELLER’S LIMITED WARRANTY OF SERVICES.
Seller warrants that the Services will be performed in a good and workmanlike manner. Buyer’s sole and exclusive remedy and Seller’s entire liability with respect to this warranty will be, at the sole option of Seller, to either (a) use its reasonable commercial efforts to reperform or cause to be reperformed any Services not in substantial compliance with this warranty, or (b) refund amounts paid to Buyer related to the portion of Services not in substantial compliance; provided that in each case Buyer notifies Seller within ninety (90) days after performance of the applicable Services.
4. DISCLAIMER OF WARRANTIES.
EXCEPT AS SPECIFICALLY SET OUT IN SECTIONS 2 AND 3 ABOVE, SELLER MAKES NO OTHER WARRANTIES ON ITS OWN BEHALF, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS OR SERVICES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5. DELIVERY.
Seller does not guarantee delivery and any delivery or other date quoted by Seller or Seller’s representatives is an approximation. Buyer understands that Seller may not have the Products in stock, and that Seller may have to order such Products from the manufacturer. In such event, Buyer agrees that the delivery date specified by Seller is subject to any delays, from whatever cause, occurring in the manufacturer’s delivery of the Products to Seller. Buyer further agrees that Seller shall not be liable for any delay arising from any cause, nor shall any such delay be grounds for cancellation of this Agreement. If the Products have not been received by Seller by the specified delivery date, Seller agrees to notify Buyer when the Products are ultimately received by Seller. Buyer agrees to take delivery of the Products from Seller, and to pay the balance of the purchase price, within ten (10) days of receiving such notice. Delivery of the Products is subject to payment in full of the balance due. Any claims for shortages must be made by Buyer within ten (10) days of receipt and must refer to Seller’s invoice number.
6. PRICES AND SURCHARGE.
All prices for Products or Services published by Seller or quoted by Seller’s representatives may be changed at any time without notice. Written quotations expire automatically 30 days from the date issued (unless otherwise specified) and all quotations and orders are subject to review and approval by Seller. All prices shall be as specified by Seller or, if no price has been specified, shall be Seller’s price in effect at the time of delivery of Products or performance of Services. All prices are exclusive of all goods and services, harmonized sales, excise, sales, use and other taxes imposed by any federal, provincial or other governmental authority, all of which taxes shall be paid by Buyer. Buyer is responsible for obtaining and providing to Seller any certificate of exemption or similar document required to exempt any sale from goods and services, harmonized sales, excise, sales, use or other applicable taxes. No provision has been made in quoted prices for inspection of electrical equipment by the Canadian Standards Association. Where necessary, Buyer undertakes to provide for such inspection by the Electrical Inspection Authority at Buyer’s own expense. Notwithstanding anything in any quotation, these Terms and Conditions, or any related materials to the contrary, Seller reserves the right, at the time of order and/or at any time before starting production, to charge Buyer a surcharge on each unit of equipment ordered by Buyer, to cover increased commodity costs, duties, tariffs or other related items, in each case, which have impacted Seller. Buyer shall provide Seller written notice if Buyer objects to the surcharge, at which time Seller or Buyer shall be permitted to cancel the order; provided that Buyer’s failure to provide written notice of cancelation within five (5) business days of being informed of the surcharge shall constitute Buyer’s acceptance of the surcharge.
7. TERMS OF PAYMENT.
Unless otherwise expressly stated in writing, payment terms are net cash ten (10) days from the date of invoice. Seller reserves the right at any time to require full or partial payment in advance, or to revoke any credit previously extended, if, in Seller’s judgment, Buyer’s financial condition does not warrant proceeding on the terms specified. Overdue payments shall be subject to interest charges computed at a periodic rate (to the extent permitted by law) equal to one and one half percent (11⁄2%) per month (18% per year) calculated on the outstanding balance at the end of each month. Amounts owed by Buyer for Products or Services purchased shall be paid without set-off for any amounts which Buyer may claim are owed by Seller and regardless of any other controversies which may exist.
8. CANCELLATIONS AND RETURNS.
Orders which have been accepted by Seller for Services or for Products designated by Seller as non-cancelable or non-returnable may not be cancelled or returned. Orders which have been accepted by Seller for all other Products may be canceled or returned only with the prior consent of Seller and of the manufacturer (as applicable) and must be returned in re-saleable condition at Buyer’s expense to Seller’s branch of original purchase within thirty (30) days from the date of original purchase of such Products accompanied by the original invoice or packing slip. In addition to any other Products designated by Seller, all of the following materials are non-returnable: oils, paints, all kits, rubber products (belts, o-rings, gaskets, moldings, any hoses), any electrical components, batteries, manuals, and all filters. All returns will be subject to a twenty-five percent (25%) restocking or cancelation charge (subject to a minimum twenty-five dollar ($25.00) charge per order). No returns are accepted for Products with an extended value below five dollars ($5.00).
9. PRIOR USE.
Buyer acknowledges that new material handling equipment purchased under this Agreement may have hours of use prior to delivery to Buyer. This use may be the result of pretesting of the equipment by the manufacturer, Seller, or potential buyers, as well as transportation to the delivery site. In the case of extensive prior use of new material handling equipment, Seller will advise Buyer of such prior use.
10. MODEL OR DESIGN CHANGES.
Buyer understands that the manufacturer retains the right to make changes in the model or design of its new Products at any time. Buyer agrees that any such changes will not obligate either Seller or the manufacturer to make corresponding changes in the particular Product covered by this Agreement, either before or after the delivery of the Product to Buyer.
11. FORCE MAJEURE.
Seller’s non-compliance with any obligation under this Agreement for reasons of force majeure (such as acts, regulations or laws of any government; war or civil commotion, destruction of product facilities or materials; fire, earthquake or storm; labor disturbances; failure of public utilities or common carriers and any other causes beyond the reasonable control of Seller) shall not constitute a breach of Seller’s obligations hereunder.
12. LIMITATION OF LIABILITY.
Buyer agrees that in the case of Seller’s failure to deliver Products or provide Services or other breach or cancellation of this Agreement by Seller, Seller’s liability and responsibility and Buyer’s sole remedy is limited to the return of Buyer’s deposit, if any, including the amount of any trade-in, if applicable. Otherwise, Buyer agrees that Seller has no liability or responsibility whatsoever associated with any Products, Services or breach or cancellation of this Agreement by Seller, including damages or costs of repair or replacement for non-conforming or defective Products, incidental damages of any kind, and consequential damages resulting from general or particular requirements of the Products or Services or needs of Buyer, or related to injury to a person, property or commercial losses of any kind, whether Seller knew or had reason to know of the potential for that injury or loss. Buyer further agrees that, because Seller has made no express warranties and has disclaimed all implied warranties associated with the Products or Services, Buyer has no remedy, and Seller has no liability or responsibility, resulting from a breach of warranty, including incidental damages and consequential damages of any kind whatsoever, including those already described in this paragraph. Finally, Buyer agrees that Buyer has no remedy, and Seller has no liability or responsibility, arising in contract, tort, strict liability, product liability, or otherwise in law or equity, for injury to Buyer or any other person, including death, as a result of the condition, use or operation of the Products. Buyer agrees that all liability or responsibility of this type will be borne by Buyer, or will be sought from the Product manufacturer, but not Seller. IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO LOSS OF USE, REVENUE OR PROFITS, INVENTORY OR USE CHARGES, COST OF CAPITAL OR CLAIMS OF CUSTOMERS) INCURRED BY BUYER OR ANY THIRD PARTY.
13. INDEMNIFICATION.
Buyer agrees to defend, indemnify and fully compensate Seller for any and all loss, damage, as well as actual costs and expenses, including lawyers’ fees, and any other amounts, incurred by, or imposed on, Seller related to any and all claims, lawsuits, judgments, awards or disputes of any kind related to this Agreement, including but not limited to the condition, use or operation of Products or any Services provided. Buyer’s obligation to defend, indemnify and compensate Seller includes and extends to all damages of any type, including incidental, consequential, special, or punitive damages, whether arising in contract, tort, strict liability, product liability or otherwise in law or equity, and includes damages or losses associated with the injury to, or death of, Buyer or any other person as a result of the condition, use or operation of Products.
14. ENFORCEABILITY.
If any term or provision of this Agreement shall, to any extent, be determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, the remaining terms and conditions of this Agreement shall be and remain valid and enforceable, or at Seller’s option, Seller may cancel this Agreement and refund to Buyer all monies paid or deposited under this Agreement, without any further liability on the part of either party to the other.
15. TITLE.
Title to Products will not pass to Buyer until Seller has received payment in full.
16. INSURANCE.
Insurance against all risks associated with Products or Services is the responsibility of Buyer.
17. NO WAIVER.
Seller’s failure to enforce any provision or right under this Agreement shall not be construed as a waiver of any breach by Buyer or any of Seller’s rights under this Agreement.
18. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties, and no other verbal, written or printed representations, claims or inducements (including in any document provided by Buyer) are incorporated into this Agreement, unless agreed to by both Buyer and Seller. This Agreement supersedes any prior purchase agreement between Buyer and Seller for the purchase of Products or Services that had not been consummated. Seller disclaims any representations or statements made by any agents, employees or representatives, whether verbal or in writing, and Buyer has not relied upon any such representations or statements. Buyer may issue a purchase order for administrative purposes only, however additional or different terms and conditions contained in any such purchase order will be null and void. This Agreement may not be amended, supplemented, changed or modified, except by agreement of an authorized representative of Seller.
19. ARBITRATION OF DISPUTES.
All disputes arising out of or in connection with this Agreement, or in respect of any legal relationship associated with or derived from this Agreement, shall be arbitrated and finally resolved, with no right of appeal, even on questions of law, pursuant to the National Arbitration Rules of the ADR Institute of Canada, Inc. The place of arbitration shall be Toronto, Ontario. The language of the arbitration shall be English.
20. GOVERNING LAW.
This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be brought in any court of competent jurisdiction in the Province of Ontario, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Notwithstanding the foregoing, Seller shall be entitled to bring an action against Buyer in the jurisdiction of Buyer’s place of business.
21. EXPORT/IMPORT.
Buyer agrees that it shall comply with all applicable import and export control laws and/or regulations, including without limitation those of Canada, the United States and/or other jurisdictions from which Products may be supplied or to which Products may be shipped. In no event shall Buyer use, transfer, release, import, export, or re-export Products in violation of such applicable laws and/or regulations.
22. ASSIGNMENT.
This Agreement may not be assigned by Buyer without the express written approval of Seller. Seller shall be permitted to assign its rights and obligations hereunder, in particular to any affiliate of Seller.
OF20632 Rev. 09-30-2022