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GENERAL TERMS AND CONDITIONS OF SALE

SPECIALTY GASKETS INC.

1. SALE OF PRODUCTS – As used in these General Terms and Conditions of Sale the term “Buyer” refers to each party listed on an invoice and/or purchase order as being responsible for the payment of goods manufactured and/or shipped, and all products or services provided (collectively, the “Products”) by Specialty Gaskets Inc., its subsidiaries, divisions and any entity controlling, controlled by or under common control of it (collectively, the “Seller”).  If the party responsible for payment on an invoice is different from the party to whom the Products were shipped, then the Buyer shall be responsible for ensuring that the party to whom the Products were shipped complies with the provisions of these General Terms and Conditions of Sale (the “Terms”).  The sale of Products from the Seller to all Buyers will be governed by these Terms.  The Terms are binding on the Buyer and expressly supersede and exclude the application of all Buyer’s general terms of purchase as well as any documents, quotations, or any other agreements, whether in writing or oral, issued previously, now or in the future by the Buyer in relation to the Products, unless specifically agreed upon in writing by the Seller.  No course of dealing or usage of trade is applicable unless expressly incorporated in the Terms.  Any clerical errors may be corrected by the Seller.  The Buyer’s written acknowledgment, the issuance of any purchase order, the acceptance of an offer of sale by the Seller, the delivery of Products or payment for the Products, whichever occurs first, are all deemed acceptance of these Terms.  Any proposal for additional or different terms or any attempt by the Buyer to vary in any degree any of the Terms contained herein or in any invoice or purchase order is hereby rejected.  All such proposals are considered a material alteration of the Terms and will not become a part of the contract between the parties unless specifically agreed to in writing by both parties.

 

2. ACCEPTANCE OF ORDERS – Promptly upon receipt of all Products from the Seller the Buyer shall inspect such Products.  If goods are found to be defective or other than as set forth in the applicable invoice, or if any shortage is discovered, the Buyer shall promptly, and in any event, within Ten (10) days after the date of the invoice, notify the Seller in writing of such nonconforming condition(s).  If the Seller receives no such written notice within Ten (10) days of the date of the invoice, the Buyer shall conclusively be deemed to have accepted the Products listed or described on the applicable invoice. Under no circumstances shall the Buyer be entitled to revoke acceptance of the Products listed or described on the applicable invoice, or deny or set-off payment for same, subsequent to acceptance thereof.  If the Buyer refuses acceptance of any Products, the Buyer will notify the Seller immediately and until such time that the Seller chooses to accept return of the Products the Buyer shall:  (1) segregate, and keep segregated, all such Products; and (2) take such action as may be necessary to protect the Seller from (a) risk of loss or damage to the Products, whether by fire, other casualty or theft, and (b) all claims and interests of third parties.  All quotations, agreements, contracts, orders, etc. provided by the Seller are subject to written confirmation and acceptance by the Seller and are contingent upon strikes, fires, floods, accidents, government regulations, and other causes beyond the reasonable control of the Seller.

 

3. PRICES AND DELIVERY DATES – Prices and delivery dates quoted are for immediate acceptance.  If not accepted within Thirty (30) days after the date of the quotation, prices and delivery dates are subject to change by the Seller without prior notice to the Buyer.  Thereafter, prices in effect on the date of shipment will prevail.  Emergencies and priorities may alter shipping dates.  Seller shall not be liable for any special, indirect or consequential damages arising from or related to any delay in or failure to deliver the Products and in the delivery of the Products.  The Seller shall retain title to all Products delivered until the Seller has received payment of the entire invoice amount.  Orders with indefinite delivery dates are accepted upon the understanding that the Seller shall have the right to manufacture or procure the Products ordered and hold same for the Buyer’s account pending receipt of definite shipping instructions.  All prices shown are list prices unless otherwise specified.  Surcharges for Special Handling, Packaging, Set Ups, Special Service, and Traceability are net charges and the Buyer is solely responsible for paying all Surcharges in full.  If any part of the Products contained in an order is not delivered by the Seller or is not in accordance with the description contained in the order, any remaining Products to be delivered in connection with the respective order and the respective obligations of the parties in connection therewith shall in no way be affected. 

4. TERMS OF PAYMENT – Payment of all invoice amounts shall be made in Canadian Dollars and by the date and on the terms set forth on the invoice.  Standard payment terms are Net Thirty (30) days.  Partial shipments and partial payment of the purchase price towards same shipment does not transfer title from the Seller to the Buyer unless and until the full purchase price with respect to the entire shipment is paid.  The Seller may refuse to ship additional Products to the Buyer if the Seller has any reason to believe that the Buyer may not be able to fulfill any of the terms of an order.  Overdue and unpaid invoice amounts shall bear interest at the rate of One Percent (1%) per month and Twelve Percent (12%) annually until paid.  No discounts are given for early payments.  Non-rated Buyer's terms are cash in advance, or cash on delivery.  Remittances should be made to the address specified on the invoice, in funds free of exchange or collection charges.  Invoices rendered by the Seller covering Products not in dispute shall be paid by the Buyer, regardless of disputes relating to other invoices or other delivered or undelivered Products, and as to such disputed invoices and the Buyer waives the right to assert offsets, defenses or counterclaims.

5. CLAIMS AND RETURNS – Claims for corrections/defects and/or credit should be made within Ten (10) days after receipt of any and all nonconforming Products and or shipment.  Absolutely no Products of any type or form are to be returned for any reason without prior written authorization from the Seller and the Seller reserves the right to refuse and return shipments received without return authorization.  The Seller shall be entitled to levy a re-stocking charge if any Products are returned by the Buyer without prior authorization by the Seller.  Transportation charges for credit returns or exchanges shall be borne by the Buyer.  Returned Products shall be identified with tags bearing the Buyer’s name, address, invoice date, and product code numbers. All Custom products are final sale.

6. CANCELLATION – Cancellation of any Products and/or orders can only be made with the Seller’s written consent and are subject to cancellation charges and restocking fees. Failure to adhere to a shipping schedule will not be accepted as a basis for cancellation without cancellation charges.

 

7. SHIPMENTS – Unless otherwise agreed to in writing at the time an order is placed, the Seller may make partial shipments and submit invoices for partial shipments.  When no shipping instructions are given, the shipping method used will be at the discretion of the Seller and the Seller reserves the right to invoice the Buyer.  

 

8. LIMITED WARRANTYThe Seller guarantees that any Product of its manufacture, which upon examination by a representative of the Seller, is found to be defective in either workmanship or material to the extent that it is not suitable for the proper usage and/or purpose for which it was designed, will be replaced or repaired, free of charge including transportation charges (if sent by ground service unless otherwise mutually agreed upon), but excluding the cost of any installation or removal charges, and only at the Seller’s discretion may the purchase price be refunded.  The Buyer must provide written notification of such defects within Ten (10) days of their receipt.  All warranty claims of the Buyer are deemed waived if not delivered in writing to the Seller within the Ten (10) day notification period.   Products are not guaranteed as to performance or durability for any specific period of time.  The sale of our Products under any other warranty or guarantee express or implied is not authorized by the Seller.  The Seller offers no express or implied warranty concerning the form, fit, fitness or function of a product in any application or for any particular purpose.  Recommendations on application design and material selection are based on available technical data and are offered as suggestions only.  It is incumbent upon the Buyer to perform careful tests in advance to determine the suitability of the Seller’s products for the intended use and requirement and fitness of the Products.  The Seller shall not be liable for proximate, incidental, consequential or other damages, including damages for loss of profits or production or injury to person or property. Any conditions, covenants and representations, both express and implied, whether arising by statute, including the Sale of Goods Act, collaterally or otherwise are excluded from warranty.  For greater clarity, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

9. DELIVERY DEFINED, SHIPPING CLAIMS AND BREAKAGE – The Buyer shall bear the risk of loss and risk of damage for ordered Products once such Products have been delivered by the Seller to a carrier and shall claim any losses or damages from the carrier.  Delivery to the initial carrier shall in all cases constitute delivery to the Buyer. The Seller does not assume responsibility for loss, damage or breakage in transit.  Responsibility for shipments delayed, lost or damaged in transit, rests with the carrier.  The Seller will assume no liability for loss resulting from non-delivery of Products on a specified date. The Seller reserves the right to insure all prepaid and charge shipments at the cost of the Buyer.

 

10. TAXES – Any sales, use, occupation or other tax which may be imposed on this transaction, is not included in the price quoted therein, and shall be paid by the Buyer in the same manner and with the same effect as if originally added thereto.  The Seller may unilaterally increase the purchase prices to offset associated increases in taxes by the government or a governmental agency.

 

11. ERRORS – Clerical errors are subject to correction.

 

12. QUANTITY VARIANCES The Seller reserves the right to ship and the Buyer agrees to accept an under or over-run of any quantity up to and including 10% of the quantity ordered by the Buyer.

 

13. SPECIAL TOOLING – ALL tooling/set up charges quoted and/or invoiced required to produce the Products  shall remain the property of the Seller unless specified arrangements are otherwise made and agreed upon in writing by the Seller.  The Seller agrees to maintain, at its expense, such tooling in good working condition.  Should the Buyer want 100% ownership, the Seller shall be entitled to levy an additional charge and all maintenance thereon and thereafter shall then become the Buyer’s responsibility.  The Seller reserves the right to destroy ALL tooling after Five (5) years at the discretion of the Seller.

 

14. PACKAGING – The Seller will provide commercially adequate packaging, under normal conditions, to protect the goods in shipment and identify the contents.  Should the Buyer request special packaging, it will be done at the Buyer's expense.

 

15. GENERAL – In the absence of written acceptance of these Terms and Conditions by the Buyer, acceptance of any materials and/or finished Products shall constitute acceptance of the Terms and Conditions herein stated.  The Seller’s failure to object to other or contradictory provisions contained in the Buyer's orders or communications shall not be deemed an acceptance thereof.  Failure by the Seller to exercise its rights hereunder or otherwise at any time shall not be deemed a waiver thereof.  If any provision of these Terms and Conditions is found contrary to any applicable law of any province of Canada wherein the Seller conducts business, or is found to be invalid by any Court of such jurisdiction, all other provisions of this Terms and Conditions contract shall remain in full force and effect.

 

16. MINIMUM ORDER – $250.00 CAD minimum order; $50.00 CAD minimum line item.  If an order does not meet these requirements, the Seller reserves the right to charge additional processing fees.

 

17. CAPACITY – The Seller may provide the Buyer with estimates or forecasts of its capacity for the manufacture or delivery of Products.  The Buyer acknowledges that any estimates or forecasts are provided for estimation of output only and, like any other forward-looking projections, are based on a number of economic and business factors, variables and assumptions, some or all of which may change over time.  The Seller makes no representation, warranty, condition, guaranty or commitment, express or implied, regarding any estimates or forecasts provided to the Buyer, including the accuracy or completeness of the estimates or forecasts.

 

18. TECHNICAL INFORMATION, CONFIDENTIALITY AND INTELLECTUAL PROPERTY(a) All specifications, drawings, schematics, tests, designs, inventions, engineering notices, financial information, selling prices, technical data, samples, prototypes, models and/or equipment (“Technical Information”) supplied by the Seller, directly or indirectly, will remain the Seller’s property and will be held in confidence and in trust by the Buyer.  Technical Information will not be reproduced, used or disclosed to others by the Buyer without the Seller’s prior written consent and will be returned promptly to the Seller upon demand or upon completion by the Seller of its obligations under the Terms.  The Buyer will disclose Technical Information only to those employees of the Buyer having a need-to-know and those bound by obligations of confidentiality equivalent to those contained in this Section 18;  (b) Any information that the Buyer discloses to the Seller with respect to the design, manufacture, sale, or use of Products is disclosed as part of the consideration for these Terms and Conditions and the Buyer will not assert any claim against the Seller by reason of the Seller’s use of such information, which is not limited in any manner;  (c) The Seller will own all right, title and interest in any idea, invention, concept, discovery, work of authorship, patent, copyright, trademark, trade secret, know-how or other intellectual property developed by the Buyer or the Seller and related, directly or indirectly, to the Products under these Terms and Conditions regardless of whether the Seller charges for the design, concept, invention or other intellectual property;  (d) Without obtaining the prior written consent of the Seller, the Buyer will not advertise or publish the fact that the Buyer has purchased Products from the Seller or use any trademarks or trade names of the Seller in the Buyer’s advertising or promotional materials. The Buyer may not resell the Products under any brand name other than the Seller’s.  In the event of the Buyer’s breach of this provision, the Seller will have the right, among all other remedies, to cancel the undelivered portion of any Products and accelerate immediately all amounts due to the Seller prior to cancellation; and (e) The Buyer will indemnify the Seller from all expenses and damages (including legal fees) related to any breach of these Terms and Conditions and without limiting the generality of the foregoing, this Section 18.

 

19. DEFAULTS AND REMEDIES – It shall be deemed an Event of Default if a Buyer fails to pay the Seller any amount as and when due, as set forth in any applicable invoice or purchase order, or if the Buyer breaches any obligation under these Terms and Conditions.  Upon the occurrence of an Event of Default, all amounts owed by the Buyer to the Seller shall be deemed to be immediately due and payable to the Seller without notice or demand, and the Seller may exercise any remedy available at law.  These Terms and Conditions, and the Terms and Conditions on invoices, shall be construed, interpreted and enforced in accordance with, and the respective rights and obligations of the parties shall be governed by, the laws of the Province of Ontario and the federal laws of Canada applicable therein, and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of such province and all courts competent to hear appeals there from.  The Buyer shall be responsible for, and reimburse the Seller for, the Seller’s reasonable legal fees and expenses in connection with any demand, litigation, arbitration or other proceeding resulting from or arising after the occurrence of an Event of Default.

 

20. DAMAGES – The Seller, its officers, directors and servants, and its affiliates and their respective officers, directors, agents and servants shall not be liable to the Buyer, nor to any other party for any liability, including without limitation, strict liability, including liability for loss or damages due directly or indirectly to occurrences or consequences resulting from the design, manufacture or supply of Products, including without limitation economic and consequential losses, or direct or indirect, incidental, exemplary and punitive damages whether in contract, tort or otherwise.  Nor shall the Seller, its officers, directors and servants, and its affiliates and their respective officers, directors, agents and servants be liable for any other claims or expenses in any manner resulting, including without limitation of liability, losses or damages directly or indirectly from, or connected with, the supply of the Products, whether or not supplied pursuant to these Terms and Conditions. Nor shall the Seller, its officers, directors and servants, and its affiliates and their respective officers, directors, agents and servants be liable for, by reason of any action, omission, active negligence, passive negligence, including gross negligence or any error or omission in the design, manufacture or supply of the Products, any use, misuse or application thereof, misrepresentation, misstatement, imprudence, lack of skill or error of judgement of or by the Seller or its officers, directors, agents and servants or its affiliates and their respective officers, directors, agents and servants. Notwithstanding anything to the contrary contained in these Terms and Conditions, the Seller shall have no liability whatsoever whether arising in contract, tort, or otherwise, for loss of capital, loss of product, loss of profit, loss of use, loss of power, power outages, cost of replacement power, or any indirect, special, incidental or consequential damages.

21. FORCE MAJEURE - Notwithstanding any other provision in these Terms and Conditions or any agreement between the Seller and Buyer, the Seller shall not be liable for any failure, delay or impairment of performance of any of its duties or obligations resulting in whole or in part from any force majeure event, including but not limited to acts of God, labor disruptions, acts of war, acts of terrorism (whether actual or threatened), governmental decrees or controls, insurrections, epidemics, quarantines, shortages, communication or power failures, fires, accidents, explosions, inability to procure or ship Products or obtain permits and licenses, inability to procure supplies or raw materials, severe weather conditions, catastrophic events, or any other circumstance or cause beyond the reasonable control of the Seller in the conduct of its business.