The following General Terms and Conditions of Sale (“Terms and Conditions”) govern the sales of wear parts (“Product”) by AM CAST Canada Industries Inc. (“AMCAST”) to you (“Buyer”). Any provisions of any order, confirmation or other document furnished by Buyer which is additional to, different from, or conflicting with these Terms and Conditions is expressly rejected and will not be binding upon AMCAST unless specifically agreed to in writing by AMCAST.
Buyer must accept these Terms and Conditions in writing. If Buyer fails to accept in writing, any conduct by Buyer that recognizes the existence of a contract pertaining to the subject matter hereof (including the retrieval or acquisition of any Products or any payment in respect thereof) shall constitute unequivocal acceptance of these Terms and Conditions.
These Terms and Conditions and AMCAST’s Order Acknowledgment(s) (as hereinafter defined) constitute the final and integrated agreement of AMCAST and Buyer, and supersede all prior negotiations, proposals, quotations, pro forma invoices, understandings and agreements, whether oral or written, relating to the Products and the subject matter of these Terms and Conditions. Any representation, warranty, course of dealing or trade usage not expressly contained or referenced herein shall not be binding upon AMCAST.
No modification, amendment, rescission, waiver or other change in these Terms and Conditions or any Order Acknowledgment shall be binding upon AMCAST unless specifically agreed to in writing by AMCAST.
1. ACCEPTANCE OF ORDERS. No order of Buyer will be binding on AMCAST unless acknowledged and accepted by AMCAST in a writing specifying the Product quantity, unit and total prices, payment terms, delivery terms (including estimated delivery timeframes) and other applicable terms and conditions (the “Order Acknowledgement”).
2. CANCELLATION OF ORDERS. Once an order is confirmed by AMCAST through an Order Acknowledgement, it is final and binding upon Buyer and AMCAST and cannot be cancelled without the prior written consent of AMCAST.
3. PAYMENT. Payment terms are as stated on AMCAST’s Order Acknowledgment. Interest shall be charged on all outstanding amounts on a daily basis and compounded monthly from the date the payment becomes due until the actual payment is made at the rate of 12% per annum or the highest rate allowed by law, whichever is less, with interest on overdue interest at the same rate. Should it become necessary for AMCAST to collect any past due balances by legal proceedings or otherwise, Buyer agrees to pay all costs of collection incurred by AMCAST, including, without limitation, reasonable attorney’s fees and court costs.
4. SHIPPING. Shipping terms are as stated on AMCAST’s Order Acknowledgment. Unless otherwise agreed in writing by AMCAST: (i) Buyer shall be responsible for and shall make all arrangements (and shall pay all costs) for the transportation and handling of Products from the designated delivery point including, without limitation, all costs and expenses for freight, transport, import fees, duties, inspection fees and other applicable charges, (ii) delivery shall be deemed complete and title and risk of loss or damage to the Products shall pass to Buyer upon acceptance of shipment by the designated carrier at the designated delivery point, subject to AMCAST’s right to be paid in full, and (iii) AMCAST shall not be responsible to obtain and/or maintain for the account of Buyer any insurance against loss or damage to Products in transit and the cost of any such insurance shall be borne by Buyer.
5. DELIVERY. The delivery dates for Products set forth in AMCAST’s Order Acknowledgment are estimates only. AMCAST shall use commercially reasonable efforts to deliver Products in accordance with the estimated dates. AMCAST shall under no circumstances be liable for any failure or delay in delivering Products within such estimated time frames.
6. CLAIMS. Subject to the provisions set forth herein, in the event that any Products sold to Buyer are affected by a defect (the “Defective Products”), AMCAST agrees to either (i) replace the Defective Products, (ii) upon return of the Defective Products to AMCAST, offer a product purchase credit to Buyer solely to the extent of any future purchases of products by Buyer, in an amount equal to the purchase price paid by Buyer for the Defective Products, or (iii) offer such other form of compensation as AMCAST considers reasonable; it being understood and agreed that the purchase price paid by Buyer therefor may not be reimbursed. Buyer understands and agrees that in assessing whether there are any Defective Products, the standards that are generally acceptable to AMCAST and/or its affiliates for workmanship and materials of products shall be taken into account. Any claim in respect of Defective Products must be made by Buyer within ten (10) days following Buyer’s discovery that any Products delivered to Buyer are Defective Products, failing which Buyer will be deemed to have accepted the Defective Products “as is” and to have waived any such claims.
All claims against AMCAST for errors or shortages must be made by Buyer in writing and notified to AMCAST within ten (10) days of receipt of the Product by Buyer. Failure by Buyer to make any such claim against AMCAST within ten (10) days of receipt of the Product shall be deemed acceptance of the Product and a waiver of any and all claims for errors or shortages.
Notwithstanding the foregoing, any use or transfer of a Product by Buyer, its agents, employees, contractors or licensees, for any purpose, after Buyer’s receipt thereof, shall constitute acceptance of such Product by Buyer.
7. RETURNS OR EXCHANGES. All sales of Product are final. No Product may be returned or exchanged without the prior written consent of AMCAST except in accordance with Section 6 above.
8. RESALE OF PRODUCTS. Buyer shall provide to its customer(s) and any subsequent purchasers and users of Products all Product information, instructions for use, manuals, warranty information and safety warnings furnished by AMCAST in respect of the Products, and shall be solely liable for any information, representations, warranties, promises and/or guarantees given to customer(s) and any subsequent purchasers and users of Products that are not provided or approved by AMCAST.
Nothing contained herein shall be construed as granting either party any express or implied right or authority to assume or create any obligation or responsibility on behalf of, or in the name of, the other party or to bind the other party in any manner. AMCAST and Buyer are independent contractors and each party shall remain responsible for its own actions.
9. PRODUCT DESIGN. AMCAST is entitled to rely upon the accuracy of all technical data and information provided by Buyer and/or its customer(s) and other anticipated purchasers and users of Products.
AMCAST is not responsible for the consequences of any failure by Buyer and/or its customer(s) or other anticipated purchasers or users of Products to provide to AMCAST any relevant technical data and other information necessary or otherwise relevant or useful for purposes of Product design, installation or implementation, or for any failure by Buyer to notify AMCAST of any development, discrepancy, omission, obscurity or other occurrence discovered or observed in respect of any Product, design or documentation.
10. INTELLECTUAL PROPERTY RIGHTS. No sale of Product hereunder shall convey any express or implied license under any patent, copyright, trademark or other proprietary rights owned or controlled by AMCAST, whether relating to the Product or any design, manufacturing process or other matter. All rights under any such patent, copyright, trademark or other proprietary rights are expressly reserved by AMCAST.
11. DISCLAIMER. PRODUCTS ARE SOLD TO BUYER HEREUNDER WITHOUT ANY WARRANTY OR REPRESENTATION OF ANY NATURE WHATSOEVER, EITHER EXPRESS OR IMPLIED, LEGAL OR CONVENTIONAL, INCLUDING FOR DEFECTS, AND AMCAST AND EACH OF ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES (COLLECTIVELY, THE “AMCAST GROUP”) EXPRESSLY DISCLAIM ALL GUARANTEES AND WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OTHER THAN THE DESCRIPTION OF THE PRODUCTS CONTAINED ON AMCAST’S ORDER ACKNOWLEDGMENT, WITH RESPECT TO QUALITY, CONDITION, DURABILITY, PERFORMANCE, USEFUL LIFE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS. AMCAST MAKES NO WARRANTY TO BUYER OR BUYER’S CUSTOMER(S) OR ANY SUBSEQUENT PURCHASERS OR USERS OF PRODUCTS THAT THE PRODUCTS ARE DELIVERED FREE OF THE RIGHTFUL CLAIM OF ANY THIRD PERSON BY WAY OF INFRINGEMENT OR THE LIKE.
12. PRODUCT SAFETY. Buyer shall be solely responsible for compliance with all laws, rules, regulations and industry safety standards applicable to the importation, purchase, distribution, sale, use and other disposition of Products purchased from AMCAST. Buyer shall cause its customers and any subsequent purchasers and users of Products to comply with such laws, rules, regulations and industry safety standards.
13. INDEMNIFICATION. Buyer shall indemnify, hold harmless and defend AMCAST and each other member of the AMCAST GROUP against any claim, loss, damage, expense and cost, including, without limitation, reasonable attorney’s fees and court costs, including any third party claims resulting from or otherwise relating to (i) any alleged failure by Buyer to comply or cause any person or entity to comply with any applicable laws, (ii) any alleged infringement of patent, copyright, trademark or other proprietary rights arising out of compliance by AMCAST or any member of the AMCAST GROUP with Buyer’s designs, specifications or instructions, and (iii) any breach by Buyer of these Terms and Conditions.
14. LIMITATION OF LIABILITY. IN NO EVENT SHALL AMCAST NOR ANY OTHER MEMBER OF THE AMCAST GROUP BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR FOR ANY LOSS (OR ANTICIPATED LOSS) OF PROFITS, REVENUE, INCOME, PRODUCTIVITY OR OPPORTUNITY, LOSS OF PRODUCTS OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTED EQUIPMENT, PARTS, FACILITIES OR SERVICES, DOWN-TIME COSTS, INTERRUPTION OF OPERATIONS, OR LABOR COSTS OR CLAIMS RELATING DIRECTLY OR INDIRECTLY TO PRODUCTS OR THESE TERMS AND CONDITIONS, WHETHER A CLAIM FOR SUCH DAMAGES IS BASED ON WARRANTY, CONTRACT, DELICT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), AND WHETHER OR NOT ARISING FROM THE SOLE, JOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY, CRIMINAL LIABILITY OR OTHER FAULT OF AMCAST OR ANY OTHER MEMBER OF THE AMCAST GROUP, EVEN IF AN AUTHORIZED AGENT OR REPRESENTATIVE OF AMCAST OR ANY OTHER MEMBER OF THE AMCAST GROUP IS ADVISED OF THE LIKELIHOOD OR POSSIBILITY OF SAME. IN NO EVENT SHALL AMCAST OR ANY OTHER MEMBER OF THE AMCAST GROUP BE LIABLE FOR ANY DAMAGES CAUSED BY BUYER'S OR ANY THIRD PARTY'S ACTS OR OMISSIONS OR BREACH OF THESE TERMS AND CONDITIONS.
AMCAST’S AND THE AMCAST GROUP’S TOTAL LIABILITY FOR ANY LOSS, DAMAGE OR CLAIM, WHETHER BASED ON WARRANTY, CONTRACT, DELICT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS OR THE PRODUCTS, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL PURCHASE PRICE RECEIVED BY AMCAST FOR THE PRODUCTS.
AMCAST’S DISCLAIMERS AND LIMITATIONS CONTAINED HEREIN APPLY TO BUYER, BUYER’S CUSTOMER(S) AND ANY SUBSEQUENT PURCHASERS AND USERS OF PRODUCTS.
15. FORCE MAJEURE. None of AMCAST or any member of the AMCAST GROUP shall be liable for any loss, damage, claim, delay or failure to perform, in whole or in part, resulting from any event or circumstance beyond the control of AMCAST or the AMCAST GROUP including, without limitation, acts of God, war, acts of terrorism, insurrections, riots, embargoes, fires, strikes, shipping and transportation logistics, inability to obtain skilled labour or necessary material, floods, weather conditions, labour disputes and natural disasters, or governmental laws, regulations, orders or actions.
16. IMPORT CONTROL. Buyer shall comply fully with all administration and import control laws and regulations of Canada as may be applicable to the import, resale or other disposition of any Product purchased from AMCAST.
17. APPLICABLE LAW. The laws of the Province of Ontario and the laws of Canada applicable therein (without giving effect to conflicts of law principles) govern all matters arising out of or relating to these Terms and Conditions, including, without limitation, their validity, interpretation, construction, performance, and enforcement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms and Conditions or any purchase or sale of Products hereunder.
18. DISPUTES. All disputes and claims arising out of or relating to these Terms and Conditions or the transactions hereunder, shall be brought exclusively before the courts situated in the judicial district of Toronto, Ontario, Canada, and Buyer waives any objection or defense based upon venue or such courts being an inconvenient forum for any such action or proceeding.
19. NOTICES. Any notice required or permitted to be given under these Terms and Conditions shall be made in writing and shall be deemed to have been given (i) if personally delivered, or (ii) if sent by registered or certified mail, postage prepaid, return receipt requested, or (iii) if sent by nationally or internationally recognized delivery service, to the address indicated by AMCAST in its first Order Acknowledgment and to the address indicated by Buyer in its first order to AMCAST. Notices shall be deemed to have been received (i) immediately, if personally delivered, or (ii) upon receipt as indicated by the date on the signed receipt, if sent by registered or certified mail, postage prepaid, return receipt requested, or by nationally or internationally recognized delivery service. Either party may from time to time change the address to which notices to it shall be given by giving notice of such change to the other party in the manner provided for herein.
20. ASSIGNMENT. AMCAST shall have the right to sell, transfer and assign its rights under these Terms and Conditions and any Order Acknowledgement to anyone who agrees in writing to assume all obligations undertaken by AMCAST thereunder and, upon such assignment and assumption, AMCAST shall, ipso facto, be under no further obligation hereunder, except for accrued liabilities, if any. Neither these Terms and Conditions nor Buyer’s rights and obligations hereunder or under any accepted order may be assigned, transferred, subcontracted or delegated, whether directly or indirectly, by operation of law or otherwise, without AMCAST’s prior written consent, and any such attempted assignment, transfer, subcontract or delegation is null and without effect. Subject to the foregoing, these Terms and Conditions shall enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
21. THIRD PARTY BENEFICIARIES. Buyer acknowledges that AMCAST is acting as trustee and agent for each member of the AMCAST GROUP, on whose behalf and for whose benefit the indemnities, disclaimers, limitations of liability and other provisions of these Terms and Conditions are provided, and further agrees that each member of the AMCAST GROUP shall have the full right and entitlement to take the benefit of and enforce such indemnities, disclaimers, limitations of liability and other provisions of these Terms and Conditions notwithstanding that each member of the AMCAST GROUP may not individually be party to these Terms and Conditions or any order. Buyer agrees that AMCAST may enforce the indemnities, disclaimers, limitations of liability and other provisions of these Terms and Conditions for and on behalf of any member of the AMCAST GROUP and, in such event, Buyer will not assert any defense thereto based on the absence of authority or consideration or privity of contract and Buyer hereby irrevocably waives the benefit of any such defense.
22. GENERAL PROVISIONS. The invalidity or unenforceability, in whole or in part, of any provision herein shall not affect the validity or enforceability of any other provision herein. Failure or delay on the part of AMCAST to exercise any right, power, privilege, recourse or remedy herein shall not constitute a waiver hereof. The section headings contained herein are for convenience of reference only and are not to be used in the construction or interpretation of these Terms and Conditions. All words used herein shall be construed to be of such gender and number as the circumstances require. All indemnities, disclaimers and limitations set forth herein, as well as all other provisions which by their nature survive, shall survive the expiry or termination of these Terms and Conditions and any accepted order, for the benefit of the parties, the members of the AMCAST GROUP and all third party beneficiaries hereof.