SALES TERMS AND CONDITIONS
- These terms and conditions (the “Sales Terms and Conditions”) shall govern the sale by Solar Store Canada of any and all items (the “Goods”) and services (Including, without limitation, any material management, assembly and engineering and design services kitting services (whether performed by Solar Store Canada or a subcontractor) sold to you (“Buyer”).
- Buyer agrees that no employees or agents of Solar Store Canada have the authority to verbally revise or waive any of the Sales Terms and Conditions.
- Buyer agrees that provisions in their purchase orders or any other document(s) that the buyer sends to Solar Store Canada that are contrary to the Sales Terms and Conditions are not binding on Solar Store Canada unless they accept them in writing.
- Buyer agrees that Sales Terms and Conditions make up the whole entire agreement and replace any prior or existing agreements, representations, warranties or understandings between the parties.
- The prices of any and all Goods or Services shall be confidential, and the Buyer shall not disclose such prices to any unrelated third party. Solar Store Canada and Buyer acknowledge and agree that money damages for any and all breaches of Buyer’s obligation not to disclose the price of any Goods or Services is both incalculable and insufficient and that any such breach would irreparably harm Solar Store Canada. Therefore, in the event of an actual or prospective breach of the obligation of Buyer not to disclose the prices of any Goods and Services, Solar Store Canada shall be entitled to a permanent and/or a preliminary injunction to prevent or remedy such breach and shall have the right to specific enforcement of this Agreement against Buyer in addition to any other remedies to which Solar Store Canada may be entitled at law or in equity.
- Buyer agrees that quotations of Goods and Services are valid for 30 days, unless otherwise specified herein, are subject to change without notice, and are subject to acceptance by Solar Store Canada when received.
Shipping of Goods – terms used as defined in Incoterm 20101
- Solar Store Canada will use their best efforts to meet any requested shipping schedule but does not guarantee a delivery time. Buyer agrees that Solar Store Canada is not accountable for delays in delivery occasioned by acts of God or other circumstances over which Solar Store Canada has no direct control. Factory shipment or delivery dates are at best estimates only, and in no case shall Solar Store Canada be liable for any indirect, special or consequential damages arising from any delay in delivery.
- If Solar Store Canada agrees to pay any or all portion of the shipping cost, shipment of Goods shall then be made Carriage Paid To Destination (CPT). Solar Store Canada reserves the right to select carrier, rate, method and route of transportation.
- Shipment of all Goods shall be made Ex Works- Shipping Point. Buyer shall bear the risk of loss and damage to Goods after delivery to the point of shipment.
- Unless otherwise agreed upon by Solar Store Canada in writing, Buyer will pay all insurance costs in connection with delivery of the Goods, if any, and be responsible for filing and pursuing claims with carriers for loss of, or damage to, Goods in transit.
- Buyer is responsible for obtaining at its sole cost and expense any and all necessary licenses and permits for the Goods and Services, including, without limitation, any licenses and permits for transportation.
- If Buyer is unable to receive the Goods when they are tendered, Buyer will be liable to Solar Store Canada for any losses, damages, or additional expenses incurred or suffered by Solar Store Canada as a result of Buyer’s inability to receive the Goods.
- Buyer agrees that if Buyer requests special packaging, handling and shipping instructions, any additional cost will, unless agreed in writing, be billed to Buyer.
- Solar Store Canada may cancel in whole or in part any order for Goods or Services under the Agreement at any time.
- Buyer immediately will inspect all Goods upon receipt and will be deemed to accept the Goods upon receipt. Any claims for shortages or discrepancies will be waived by Buyer unless made in writing to Solar Store Canada within five days of receipt of the Goods.
- Notwithstanding the above, until the Buyer has fully paid all amounts owed to Solar Store Canada for any Goods title for such goods shall remain with Solar Store Canada, and Buyer shall hold such Goods in trust for Solar Store Canada, and repossess them if Buyer fails to pay for them in a timely fashion.
Credit and Payment
All orders are subject to Solar Store Canada approval in respect to credit. If credit has not been arranged, payment must accompany order.
Buyer is responsible for payment of any transportation taxes, and any present or future sales, use, excise, import or any similar tax or other governmental charge applicable to the Agreement and to the sale and/or furnishing of the Goods and Services.
The purchase price of the Goods and Services does not include transportation taxes and sales, use, excise, import or any similar tax or other governmental charge arising pursuant to or in connection with the sale, purchase, processing, delivery, storage, use, consumption, performance or transportation of the Goods and Services.
Buyer may cancel its order for Goods and/or Services, but only if Solar Store Canada agrees to such cancellation in writing and only after Buyer pays reasonable charges for expenses already incurred and commitments made by Solar Store Canada in connection with the placement of such order(s).
SOLAR STORE CANADA HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, ARISING BY CONTRACT, AT LAW, IN EQUITY, BY STRICT LIABILITY OR OTHERWISE, WITH RESPECT TO THE GOODS AND SERVICES, INCLUDING, BUT NOT LIMITED TO,
- of fitness for a particular purpose
- of merchantability
- against defects in design
- materials and workmanship
- of Good Title
- against redhibitory defects
- against infringement of third-party intellectual property including, but without limitation to, Trademarks, Copyrights, or any Patents
Solar Store Canada, however, if given prompt written notice by Buyer of any claim of alleged patent, trademark or copyright infringement with respect to any Goods use its reasonable efforts to secure for Buyer such protection right as the manufacturer may offer with respect to such Goods.
Specifications and Product Suitability
- Buyer assumes responsibility for compliance with such safety standards and regulations in the localities in which the Goods will be shipped, sold and used. Before purchase and use of any Goods, Buyer should review the product application, national and provincial codes and regulations, and verify that the use and installation of the Goods will comply with them.
- Unless Solar Store Canada has expressly agreed otherwise in writing, it is Buyer’s responsibility to ensure that the Goods and Services are the ones that it has requested and that all specifications and quantities are correct. SOLAR STORE CANADA HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES THAT GOODS AND SERVICES CONFORM TO ANY SPECIFICATIONS, DRAWINGS, DESIGNS, OR SAMPLES.
Solar Store Canada shall have and preserve all right, title, and interest in and to any or all trade secrets, sales service and product plans, technical data, methodologies, techniques, designs, tools, samples, styles, knowledge, expertise and other proprietary information that may be used in accordance with or in connection with any Services, and Buyer shall not obtain a license to, or any other property rights in, any such Solar Store Canada property pursuant to or in connection with this Agreement.
Nothing contained this agreement shall be interpreted to limit or waive any rights of Solar Store Canada under applicable Canadian federal, provincial or local laws. No waiver of any right or remedy in respect of any occurrence on one occasion shall be deemed a waiver.
- Buyer’s EXCLUSIVE remedy against Solar Store Canada arising out of any defect in a Good tendered to Buyer is the repair or replacement of the Good, or alternatively, at Solar Store Canada sole election, a refund of the purchase price of the Good. Buyer’s EXCLUSIVE remedy against Solar Store Canada arising out of any defect in, or in connection with, any Service provided hereunder is the re-performance of the Service or, at Solar Store Canada sole election, a refund of the purchase price of the Service. These remedies will only be available to Buyer for one year after the Good is tendered or Service is provided to Buyer, and Solar Store Canada obligations under this Section will be void unless Buyer provides Solar Store Canada with notice of the defect in the Good or Service within 30 days of discovery of the defect. Any Good returned to Solar Store Canada for repair, replacement or refund under this section will be returned by Buyer in accordance with Solar Store Canada return material authorization procedures then in effect, returns for a refund will be subject to applicable restocking fees.
- If goods shipped are not as ordered, Buyer agrees to accept the goods from the carrier and if Buyer desires to return the goods to Solar Store Canada, to follow the procedures set out herein. Buyer further agrees that Buyer will notify Solar Store Canada and make a claim for settlement within 5 days of the receipt of the goods.
- If goods shipped show evidence of damage or injury upon receipt, Buyer agrees that Buyer will not accept the goods “in good condition” and will instead give receipt noting the damage or injury. If Buyer desires to return the goods to Solar Store Canada, Buyer agrees to follow Solar Store Canada return material authorization procedures then in effect. Buyer further agrees that Buyer will notify Solar Store Canada and the carrier of the claim without delay.
Limitation of Liability
NOTWITHSTANDING ANYTHING ELSE CONTAINED HEREIN TO THE CONTRARY, IN NO EVENT WILL:
- SOLAR STORE CANADA BE LIABLE TO BUYER FOR ANY CIRCUMSTANTIAL, CONSEQUENTIAL, CONTINGENT, EXEMPLARY, INCIDENTAL, INDIRECT, LIQUIDATED, MATERIAL, PUNITIVE, SPECIAL, SPECULATIVE OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, SALES OR REVENUES, COST OF REPLACEMENT GOODS, LOST BUSINESS OR BUSINESS INTERRUPTIONS, OR ATTORNEY’S FEES OR COURT COST ARISING IN ANY MANNER PURSUANT TO OR IN CONNECTION WITH THE AGREEMENT, THE GOODS OR THE SERVICES (EVEN IF SOLAR STORE CANADA IS MADE AWARE OF THE POTENTIAL FOR SUCH DAMAGE(S);
- SOLAR STORE CANADA TOTAL LIABILITY RELATED TO ANY GOOD OR SERVICE EXCEED THE PURCHASE PRICE OF SUCH GOOD OR SERVICE.
- Upon prompt notice by Buyer of any claim of patent, copyright, or trademark infringement with respect to any Goods or Services, Solar Store Canada will use its reasonable efforts to secure for Buyer such indemnity rights as the manufacturer may typically give with respect to such Goods. This Section sets forth Buyer’s sole and exclusive remedy against Solar Store Canada regarding the infringement by any Goods or Services of any third-party intellectual property rights, including, without limitation, any patents or trademarks.
- Buyer will indemnify, defend and hold harmless Solar Store Canada, its shareholders, officers, directors, employees, agents and representatives from and against all losses, damages, liabilities, cost and expenses including, but not limited to, property damage, loss of profits or revenue, loss of use of any property, cost of capital, cost of purchased or replacement power or temporary equipment, personal or bodily injury, or death (“Losses”), that may arise pursuant to or in connection with the Agreement, the Goods, or the Services (including, without limitation, Losses arising in connection with the performance of Services on Buyer’s premises by Solar Store Canada employees, representatives, agents, or subcontractors), regardless of whether such Losses are suffered directly by Buyer or arise pursuant to or in connection with a third-party suit, claim, counterclaim, demand, judgment or other action (each a “Claim”) and regardless of whether or not Solar Store Canada or any third-party is proportionately negligent with respect to such Losses and/or Claim, provided that Buyer need not indemnify Solar Store Canada for Solar Store Canada obligation, if any, to Buyer under Sections herein. For the avoidance of doubt and without limitation, this indemnification obligation requires Buyer to pay any judgments against Solar Store Canada or any other indemnified party resulting from any Claim, any court costs of Solar Store Canada or any other indemnified party in connection with any Claim, and any reasonable attorneys’ fees and disbursements incurred by Solar Store Canada or any other indemnification party in Solar Store Canada defense of any Claim. Solar Store Canada will have the sole and exclusive right to conduct the defense of any Claim at Buyer’s sole and exclusive cost and expense. Buyer’s indemnification obligation does not depend on the truth or accuracy of any claims made against Solar Store Canada, Buyer or any third party.
Interpretation of the Agreement
The terms, conditions, and limitations set forth in the Agreement can be modified, altered, or added to only by a subsequent written instrument signed by an authorized representative of Solar Store Canada AND an authorized representative of the Buyer.
Each purchase is considered unique – regardless of how many times Buyer purchases, or has purchased, goods and services from Solar Store Canada by whatever means, each time Buyer accepts the Agreement, Buyer and Solar Store Canada enter into a separate agreement that will be interpreted without reference to any other agreement between Buyer and Solar Store Canada, or what Buyer may claim to be a course of dealing or course of performance that has arisen between Buyer and Solar Store Canada. No inconsistent usage of trade or industry custom, if any, prior to, contemporaneous with or subsequent to the making of the Agreement will waive, vary, serve to explain or serve to interpret any of the terms, conditions and limitations of the Agreements. The Agreement is the sole and exclusive agreement with respect to the matters discussed herein and the provision of Goods and Services hereunder, (except for any contemporaneous writing agreed to in writing by Solar Store Canada expressly modifying the terms and conditions hereof, which is hereby incorporated herein by reference and made a part hereof) and supersedes all prior and contemporaneous agreements and understandings, negotiations, inducements, representations or conditions, whether oral or written, whether express or implied, with respect to such matters. Failure by Solar Store Canada to enforce any of the terms, conditions and limitations of the Agreement will not constitute a waiver of those terms, conditions and limitations or a waiver of any other terms, conditions or limitations of the Agreement, and the failure of Solar Store Canada to exercise any right (whether provided by the Agreement, law, equity, or otherwise) arising from Buyer’s default under the Agreement will not constitute a waiver of that right or any other rights.
Solar Store Canada will not be liable for its failure to perform under the Agreement (including, without limitation, the failure to deliver any Goods or perform any Services) due to circumstances beyond its control, including, without limitation, flood, earthquake, fire, pestilence or similar catastrophe; act of terrorism, war or strike; shortage of suitable parts lack, or failure of transportation facilities, materials or labour; any existing or future law, rule, regulation, decree, treaty, proclamation, or order of any governmental agency; inability to secure fuel, materials, supplies, equipment or power at reasonable prices or in sufficient amounts; act of God or the public enemy; or any other event or cause beyond Solar Store Canada reasonable control, including, without limitation, any delay caused by Buyer (each, a “Force Majeure Event”).
If any Force Majeure Event prevents Solar Store Canada performance of any of its obligations under the Agreement, Solar Store Canada will have the right to:
- Change, terminate or cancel the Agreement, or
- Omit during the period of the Force Majeure Event all or any portion of the quantity of the Goods deliverable during that period, whereupon the total quantity deliverable under the Agreement will be reduced by the quantity omitted. If Solar Store Canada is unable to supply the total demands for any Goods to be delivered under the Agreement due to a Force Majeure Event, Solar Store Canada will have the right to allocate its available supply among its customers in whatever manner Solar Store Canada deems to be fair and equitable. In no event will Solar Store Canada be obligated to purchase materials from other than its regular sources of supply in order to enable it to supply Goods to Buyer under the Agreement. No change, cancellation or proration by Solar Store Canada will be deemed to be a breach of any clause, provision, term, condition, or covenant of the Agreement.
Choice of Law; Choice of Venue
The negotiation, execution, performance, termination, interpretation and construction of the Agreement will be governed by the law of the Province of Alberta. If either Solar Store Canada or buyer brings a lawsuit or any other action arising out of the Agreement against the other party, such party must file its lawsuit or other action in a provincial or federal court located in Calgary, Alberta. Solar Store Canada and Buyer expressly submit to the exclusive jurisdiction of the courts and consent to venue in those courts, and Solar Store Canada and Buyer consent to extra-territorial service of process on Solar Store Canada and Buyer. Any provision of the Agreement held to be invalid, illegal or unenforceability of the remaining provisions hereof. Each of the provisions contained in this agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision hereof or thereof
Any director, officer, employee, representative, or agent of Buyer signing or otherwise entering into this Agreement hereby represents and warrants that he or she is properly authorized to execute and enter into this Agreement on behalf of Buyer.
- Refers to the International Chamber of Commerce transportation guidelines as modified. Please see https://iccwbo.org/resources-for-business/incoterms-rules/incoterms-rules-2010/ for more information