General Terms and Conditions of Sale
The following terms and conditions of sale shall apply to any sale of goods and services by Eating New Creations Inc. (hereinafter called “Eating New Creations”). Purchaser shall be deemed to have full knowledge of the terms and conditions herein and such terms and conditions shall be binding if either the goods or services referred to herein are delivered to and accepted by Purchaser, or if Purchaser does not within five days from the date hereof (quotation date) deliver to Eating New Creations written objection to said terms and conditions or any part thereof.
In the event of any conflict or inconsistency between the terms and conditions of sale herein and the terms and conditions contained in Purchaser’s order or in any other form issued by Purchaser, whether or not any such form has been acknowledged or accepted by Eating New Creations, Eating New Creations’ terms and conditions herein shall prevail. No waiver, alteration or modification of these terms and conditions shall be binding upon Eating New Creations unless made in writing and signed by a duly authorized representative of Eating New Creations.
Unless otherwise stated, Eating New Creations’s quotation shall be null and void unless accepted by Purchaser within thirty (30) days from the date of quotation.
3. PRICES / COST OF TRANSPORTATION
All quoted prices are based on the current exchange rates, tariffs and costs of manufacture. Unless otherwise stated in the quotation, quoted prices are subject to change by Eating New Creations with or without notice until Purchaser’s acceptance. Prices are subject to correction for error. Unless otherwise stated, all prices are F.O.B. factory and include domestic packing. Customary methods of transportation shall be selected by Eating New Creations and such transportation will be at Purchaser’s expense. Special methods of transportation will be used upon Purchaser’s request and at Purchaser’s additional expense provided reasonable notice of Purchaser’s transportation requirements are given by Purchaser to Eating New Creations prior to shipment.
Prices do not include Goods & Services Tax, Harmonized Sales Tax (HST), or similar tax. Accordingly, in addition to the price specified herein, the amount of any present or future sales, to the extent the goods will be delivered within Canada, an incremental amount equivalent to the HST will be added to all invoices.
Delivery schedules are approximate and are based on prevailing market conditions applicable respectively at the time of Eating New Creations’s quotation and Eating New Creations’s acceptance of Purchaser’s order. Delivery shall also depend on the prompt receipt by Eating New Creations of the necessary information to allow maintenance of the manufacturer’s engineering and manufacturing schedules. Eating New Creations may extend delivery schedules or may, at its option, cancel Purchaser’s order in full or in part without liability other than to return any deposit or prepayment which is unearned by reason of the cancellation.
6. FORCE MAJEURE
Eating New Creations shall not be responsible or liable for any loss or damage incurred by Purchaser herein resulting from causes beyond the reasonable control of Eating New Creations including, but without limitation, acts of God, war, invasion, insurrection, riot , the order of any civil or military authority, fire, flood, weather, acts of the elements, delays in transportation, unavailability of equipment or materials, breakdown, sabotage, lock-outs, strikes or labour disputes, faulty castings or forgings, or the failure of Eating New Creations’ suppliers to meet their delivery promises. The acceptance of delivery of the equipment by Purchaser shall constitute a waiver of all claims for loss or damage due to any delay whatsoever.
7. SHIPMENT, DAMAGES OR SHORTAGES IN TRANSPORT
Except for obligations stated under “Warranty” herein, Eating New Creations’s responsibility for goods ceases upon delivery to the carrier. In the event of loss or damage during shipment, Purchaser’s claim shall be against the carrier only. Eating New Creations will, however, give Purchaser any reasonable assistance to secure adjustment of Purchaser’s claim against the carrier provided immediate notice of such claim is given by Purchaser to Eating New Creations. Claims for shortages must be made in writing within ten (10) days after receipt of goods by Purchaser. If Eating New Creations does not receive written notification of such shortages within such ten (10) days, it shall be conclusively presumed that the goods were delivered in their entirety. Unless agreed upon otherwise in writing, Eating New Creations reserves the right to make partial shipments and to submit invoices for partial shipments.
Title to the goods or any part thereof shall not pass from Eating New Creations to Purchaser until all payments due hereunder have been duly made in cash (includes wire transfers and electronic Fund Transfers) except as otherwise expressly stipulated herein. The goods shall be and remain personal or moveable property, notwithstanding their mode of attachment to realty or other property. If default is made in any of the payments herein, Purchaser agrees that Eating New Creations may retain all payments which have been made on account of the purchase price as liquidated damages, and Eating New Creations shall be free to enter the premises where the goods may be located and remove them as Eating New Creations’s property, without prejudice to Eating New Creations’s right to recover any further expenses or damages Eating New Creations may suffer by reason of such nonpayment.
Eating New Creations shall not be liable for and shall be held harmless by Purchaser from any damage, losses or claims of whatever kind, contractual or consequential or incidental, direct or indirect, arising out of, in connection with or resulting from the sale governed hereby or the goods, including, but without limitation, the manufacture, repair, handling, installation, possession, use, operation or dismantling of the goods and any and all claims, actions, suits, and proceedings which may be instituted in respect to the foregoing.
10. TERMS OF PAYMENT
Unless otherwise stated, invoices are payable within thirty (30) days of invoice date. Unless specifically provided, no cash discount shall be available to Purchaser. When cash discount is offered, the discount price is computed from the date of invoice. Should payment not be made to Eating New Creations when due, Eating New Creations reserves the right, until the price has been fully paid in cash, to charge Purchaser with interest on such overdue payments at the rate of eighteen percent (18%) per annum. The charging of such interest shall not be construed as obligating Eating New Creations to grant any extension of time in terms of payment.
11. CHANGES AND CANCELLATION
Orders accepted by Eating New Creations are not subject to changes or cancellation by Purchaser, except with Eating New Creations’s written consent. In such cases where Eating New Creations authorizes changes or cancellation, Eating New Creations reserves the right to charge Purchaser with reasonable costs based upon expenses already incurred and commitments made by Eating New Creations, including, without limitation, any labour done, material purchased and also including Eating New Creations’s usual overhead and reasonable profit and cancellation charges from Eating New Creations’s suppliers.
12. THE AGREEMENT
An acceptance and official confirmation of Purchaser’s order by Eating New Creations shall constitute the complete agreement, subject to the terms and conditions of sale herein set forth, and shall supersede all previous quotations, orders or agreements. The law of the Province of Ontario shall govern the validity, interpretation and enforcement of these terms and conditions of sale and of any contract of which these terms and conditions are a part.