by Akhurst Machinery Limited or Akhurst Machinery Inc. (the “Vendor”)
These Terms and Conditions are to be read together with the applicable invoice and Limited Warranty
The following terms and conditions govern the sale by the Vendor to the BUYER named in an invoice issued by the Vendor, of the items listed in the invoice (the “Products”). By accepting delivery of any of the Products, the Buyer agrees to be bound by and accepts these terms and conditions and the applicable terms and conditions in the Vendor’s Limited Warranty. If you have not obtained the Limited Warranty you may obtain a copy from the Vendor’s web site, or by calling the Vendor.
No Alteration – These terms and conditions may not be altered, supplemented or amended by the use of a Buyer purchase order or other document, and may only be altered, supplemented or amended by written agreement signed by the Vendor and the Buyer. The Vendor may change these terms and conditions as they relate to future sales or deliveries at any time without prior notice.
Governing Law – These terms and conditions will be governed by the law of the province/state named in the Vendor’s address on the invoice.
Credit Terms – Credit terms and payment terms are as set out on the invoice, or if no terms are set out on the invoice payment in full must be received by the Vendor prior to the Vendor’s acceptance of an order. Orders are not binding on the Vendor until accepted by the Vendor. The Buyer agrees to pay interest on all amounts past due at a rate of 2% per month (26.82%per year). The Products remain the property of the Vendor until the purchase price is paid in full.
Other Charges – The Buyer will pay separate charges for freight, brokerage, duties and taxes, where applicable, as shown on the invoice.
Limited Warranty – The Vendor’s Limited Warranty is the Vendor’s only warranty obligation. The terms, conditions, limitations and provisions of the Limited Warranty form part of, and are agreed by the Buyer to apply to, these terms and conditions.
Buyer’s Exclusive Remedies – If there are defect(s) in the Products, Buyer’s exclusive remedy is to have the Products repaired or modified only by the Vendor at the Vendor’s sole discretion. If the Vendor determines that the Products cannot be economically repaired, then, and only then, can the Products be returned by Buyer with a Return Goods Authorization number as provided by the Vendor, freight costs prepaid, and the Vendor will refund the purchase price. No claim for defects in the Products shall be valid unless made and received by the Vendor in writing within sixty days after receipt of shipment by Buyer. In no event shall the Vendor be liable for any damages except for the refund of the purchase price of the Products returned within the time permitted by these terms and conditions.
Cancellation Charge – It is understood and agreed by Buyer that upon acceptance of the Buyer’s order, the Vendor will request the manufacture of the Products and will incur other costs in that course and as a result of scheduling production of the order, all of which are not readily identifiable or subject to precise ascertainment. It is therefore agreed by Buyer that if Buyer cancels this order prior to the commencement of its production but after preliminary specifications have been scheduled, a 20 percent cancellation charge will be payable to the Vendor by Buyer and may be withheld from Buyer’s down payment, if any. If at any time thereafter Buyer refuses to complete the purchase herein provided for, the Vendor may assess in addition to the 20 percent cancellation charge, the material, labour and overhead cost applicable to the order, plus a commercially reasonable mark-up on these items, plus loss of profits, all of which Buyer agrees to pay.
Causes Beyond the Vendor’s Control – The Vendor shall not be liable for failure to perform under these terms and conditions if such failure shall be due to fire or material shortages, or to strikes, lockouts, public enemy, Acts of God, or causes beyond the Vendor’s control, or if in our opinion there is a material change in the terms of acquiring the goods from our supplier.
Shipment – If the method of shipment is not specified by Buyer, the Vendor shall select the carrier. The Vendor shall not be liable for the carrier the Vendor selects or method of shipment. If Buyer for any reason requests a partial shipment or manner of carriage or delivery resulting in a higher freight rate than would have been applicable had the order been shipped complete or in another way, any extra cost shall be payable by Buyer.
Loss or Damage in Shipment – The Vendor’s responsibility for delivery ends upon release of the Products to the carrier and the risk of loss as to the Products passes to Buyer upon the Vendor’s tender of the Products to the carrier. Should a shortage occur or the Products arrives in damaged condition DO NOT SIGN A RECEIVING SLIP WITHOUT NOTING SHORTAGES OR DAMAGE ON IT. Buyer must proceed to place a claim with the carrier promptly. THE VENDOR IS NOT LIABLE FOR ANY CARGO SHORTAGE, CARGO DAMAGE OR DELAY IN DELIVERY.
Integration – Unless the Vendor requires a Personal Guarantee, the invoice, these terms and conditions and the Limited Warranty embody the entire understanding between the parties and it is agreed that there are no other arrangements, agreements or understandings, oral or written. If a Personal Guarantee is required by the Vendor, and a Personal Guarantee is signed by a Guarantor of or for Buyer, the Personal Guarantee is made a part of these terms and conditions.
Severability – If any term, provision, covenant or condition of these terms and conditions is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provision shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
Non-Waiver – Waiver of any default or breach of these terms and conditions or of any representation or obligation contained herein shall not be construed as a waiver of any subsequent breach.
Time of the Essence – Time is of the essence for each and every provision of these terms and conditions.
Limitation – The Vendor does not accept liability beyond the remedies set forth in these terms and conditions. The Vendor will not be responsible for lost profits, loss of business or other loss or damage relating in any way to products or services, whether direct or consequential, special, indirect or punitive, even if advised of the possibility of such losses or damages, or for any claim by any third party. The foregoing limitations apply regardless of the causes or circumstances giving rise to the loss, damage or liability, even if such loss, or damage or liability is based on negligence or other torts or breach of contract including, without limitation, fundamental breach or breach of a fundamental term.