General Terms and Conditions
All quotations are made for immediate acceptance unless otherwise stated. Prices are subject to change without notice. Prices are quoted FOB our warehouse exclusive of applicable taxes unless otherwise stated. We shall not be held responsible for any consular fees, fees for legalizing invoices, certificates of origin, stamping bills of lading, or other charges required by the laws of any country of destination, or any fines, penalties or interest imposed due to incorrect declarations.
We accept cash, cheques, electronic fund transfers, MasterCard or Visa. Payment is due upon receipt of invoice. Late charge of 2% per month, which is an annual percentage of 24% may be assessed on all overdue accounts. Payment is due whether or not technical documentation and/or any third party certifications are complete at the time of shipment. We will be entitled to recover all reasonable attorneys’ fees and other costs incurred in the collection of overdue accounts.
With credit approval, you will be allowed to charge to an open account. We accept cash, cheque or electronic fund transfer only for payment of account. Your credit limit will be set according to the references listed on your credit application if you have not established credit. Your creditworthiness may be re-confirmed from time to time at our sole discretion. We reserve the right, where a genuine doubt exists as to your financial position or if you are in default of any payment obligation, to suspend delivery or performance of any agreement or any part thereof without liability and without prejudice to, and without limitation of, any other remedy available to us until you cure the default or satisfactory security for payment has been provided. We will have the option to extend the delivery date by a time at least equal to the period of such suspension.
All goods are carefully packed and inspected prior to shipping. We will attempt to pack or prepare all shipments so that they will not break, rust or deteriorate in shipment, but we do not guarantee against such damage. Check all goods immediately upon receipt. If goods are damaged in transit or shortages appear, it is your responsibility to file a claim with the delivery carrier. We accept no responsibility for any damage, shortage or loss in transit. Ownership and risk of loss passes to you upon the earlier of (a) our delivery of the goods, or (b) invoicing by us for the goods where you are unable to accept delivery on the scheduled date. We will retain a security interest in the goods until the purchase price has been paid, and you agree to perform upon request all acts required to secure our interest.
Please note all damages and shortages on the freight bill before signing. All shortages must be reported within 24 hours after receipt of shipment or claim will be denied.
Fees for carriers will be prepaid and invoiced to the customer, unless otherwise directed by the customer to use the customer’s own account with a specific carrier. Shipments made by bus lines and common courier will be collect unless otherwise specified. We do not ship via postal service. Unless otherwise agreed to by us in writing, delivery terms shall be EXW Maxquip’s premises (INCOTERMS 2010), except to the extent modified by this General Terms and Conditions. Where goods are to be supplied from stock, such supply is subject to availability of stocks at the date of delivery. Partial shipments may be made as agreed to between you and us. Stated delivery dates are approximate only and cannot be guaranteed. We will have no liability for damages arising out of the failure to keep a projected delivery date, irrespective of the length of the delay. In the event you are unable to accept delivery of goods when tendered, we may, at our option, arrange for storage of the goods at your sole risk and you will be liable to us for the reasonable cost of such storage. This provision is without prejudice to any other rights which we may have with respect to your failure to take delivery of goods, which includes the right to invoice you for the goods. You agree that title to the stored goods will transfer to you upon invoicing notwithstanding your inability to accept delivery and that you assume all risk of loss or damage to the goods from the date title passes to you. You are responsible for all shipping costs from our premises to the location as designated by you. All shipping costs for the return of goods from the location specified by you to our premises will also be for your account.
On special items we order that are not normal stock items, we cannot accept cancellations or returns in most cases. In certain cases (to be determined by Maxquip Inc. in its sole discretion) returns may be possible, subject to a restocking fee.
No returns will be accepted after 30 days. No material should be returned for credit without Maxquip’s approval. All freight charges must be prepaid on returned items, and all original prepaid freight charges must be paid in full. Goods returned must be accompanied by a Returned Goods Authorization (RGA) number and a copy of the original invoice. All shipped to Maxquip without prior authorization (RGA) will not be accepted and the item will be returned freight collect. Restocking charges will apply.
The warranty for goods, products and parts provided to you pursuant to this agreement is subject to the exclusions and limitations set out under the section, Warranty Exclusions and Limitations, below:
(a) With respect to goods wholly or substantially assembled or installed by us, we warrant that the goods supplied will be free from material defects in material and workmanship and will perform in accordance with the specifications set out in our quotation, or any accepted purchase order between you and us, for 12 months from completion of commissioning or 18 months from date of shipping; whichever is sooner. You must send us confirmation of the date the equipment was put into service before a warranty claim is processed.
(b) This warranty will be honoured (at our option) either by repair or replacement of defective parts by us at the original point of origin, or by a credit to your account in an amount equal to the cost of the defective part. For replacement parts, we will ship replacement parts FREIGHT COLLECT (for which you are responsible) and will invoice for the replacement parts at time of shipment, for which you are responsible to pay, and provide an equal credit only upon (a) receipt of the defective parts and (b) confirmation that the parts were in fact defective and not subject to any conditions not covered by this warranty.
(c) There may be times when you may not be required to send back the affected parts for inspection by us. Upon validation of your claim, on shipments of this nature, the parts will be sent out at no charge and the freight will be sent FREIGHT COLLECT (for which you are responsible).
(d) This warranty only applies to products assembled or installed by us. All other third party components (not assembled or installed by us) will carry only the third party manufacturer’s limited warranty. Warranties as expressed by individual manufacturers will be honoured. We will comply with all instructions given by the manufacturer in each given instance. All required shipments will be sent FREIGHT COLLECT (for which you are responsible).
(e) You must report the warranty claim, (and unless agreed upon between you and us) return warrantable or defective goods, products or parts to us within 30 days of discovery of the defect; failure to do so will result in denial of warranty coverage under these terms.
Warranty Exclusions and Limitations
No warranty is provided where we determine (in our sole discretion, acting reasonably) that the damage or destruction to supplied goods, products or parts was caused by:
(a) the goods, products or parts having been subjected to use other than for the intended purpose (as set out in the order documentation between us and you, and when such documentation does not exist as per generally accepted industry standards for such good, product or part);
(b) abuse, accident, faulty installation, damage during transportation or similar causes caused by you or a third party;
(c) your failure to maintain the good, product or part in accordance with the manufacturer’s specifications;
(d) your failure to follow our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the good, product or part;
(e) normal wear and tear based on the usage of such good, product or part.
You will be responsible for, and shall protect, indemnify, defend and save harmless, us from and against the reporting, filing and payment of any taxes, duties, charges, licenses, or fees (and any related fines, penalties or interest and the like) imposed directly on you in connection with the purchase of the goods and all liabilities, costs, and associated expenses (including lawyers’ and experts’ fees) which may be incurred in connection therewith. Such taxes, duties, charges, licenses, or fees include but are not limited to any local, state, federal, foreign, or international sales, use, value added tax (“VAT”), goods and services tax (“GST”), rental, import, export, personal property, stamp, excise and like taxes and duties. If we pay any such tax, you will, within thirty (30) days of our demand, reimburse us for the tax including interest, fines, and penalties, paid by us. It will be your sole obligation after payment to us to challenge the applicability of any tax. Notwithstanding the foregoing, we will provide you with a copy of all exporting documents and any other documents reasonably requested by you to prove or substantiate to the appropriate tax authorities the goods were timely exported.
You will cooperate with us, and at our request, you will use your best efforts to supply us such information (including documentary information) in connection with your activities as may be required by us for any of the following purposes:
- a) to enable us to comply with the lawful demand or requirement for such information by any appropriate government authority or to ensure that all requirements of the applicable law are being complied with;
- b) to enable us to conduct, defend, negotiate or settle any claim arising out of, or in connection with, such activities, whether or not such claim shall have become the subject of arbitration or judicial proceedings;
- c) to enable us to make any application (including, but without limitation, any claim for any allowances or relief) or representation in connection with, or to contest any assessment on, or our liability in connection with any taxes, duties, levies, charges and contributions (and any interest or penalties thereon); or
- d) to secure for us any beneficial tax treatment and legally minimize any tax obligations in connection with the sale of our goods.
Liabilities, Releases and Indemnification
For purpose of this section, the following definitions will apply:
“Claims” shall mean all claims, demands, causes of action, liabilities, damages, judgments, fines, penalties, awards, losses, costs, expenses (including, without limitation, attorneys’ fees and costs of litigation) of any kind or character arising out of, or related to, the performance of or subject matter of this Agreement (including, without limitation, property loss or damage, personal or bodily injury, sickness, disease or death, loss of services and/or wages, or loss of consortium or society).
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER AND EACH PARTY RELEASES THE OTHER FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSSES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PRODUCTION, LOST REVENUE, LOST PRODUCT, LOST PROFIT, LOST BUSINESS OR BUSINESS OPPORTUNITIES.
Maxquip’s total liability for all claims, damages, causes of action, demands, indemnities, judgments, fines, penalties, awards, losses, costs and expenses (including attorney’s fees and cost of litigation) shall be limited to and shall not exceed the value of the goods purchased by the customer.
Maxquip shall not be liable for any claims, damages, causes of action, demands, indemnities, judgments, fines, penalties, awards, losses, costs and expenses (including attorney’s fees and cost of litigation) that may arise as a result of the customer’s use of the supplied equipment in a manner which such equipment is not adequately certified for. The customer is required to ensure appropriate certification for the equipment it intends to use and to confirm that such certification(s) are applicable for the jurisdiction in which the equipment is being used and have not expired, changed or otherwise materially been altered.
The customer acknowledges that the customer has selected the equipment and that Maxquip does not and will not make any representation or warranty, express or implied, with respect to the equipment or its adequacy for the customer’s purpose or otherwise. Except as expressly stated herein, Maxquip makes no other representation, warranty or condition with respect to the equipment and disclaims all other representations, warranties or conditions, express or implied, with respect to the merchantability or fitness for a particular purpose of the equipment.
THE EXCLUSIONS OF LIABILITY, RELEASES AND INDEMNITIES SET FORTH IN THIS SECTION SHALL APPLY TO ANY CLAIM(S), LOSSES OR DAMAGES WITHOUT REGARD TO THE CAUSE(S) THEREOF, INCLUDING BUT NOT LIMITED TO PRE-EXISTING CONDITIONS, WHETHER SUCH CONDITIONS BE PATENT OR LATENT, THE UNSEAWORTHINESS OF ANY VESSEL OR VESSELS, IMPERFECTION OF MATERIAL, DEFECT OR FAILURE OF PRODUCTS OR EQUIPMENT, BREACH OF REPRESENTATION OR WARRANTY (EXPRESS OR IMPLIED), ULTRAHAZARDOUS ACTIVITY, STRICT LIABILITY, TORT, BREACH OF CONTRACT, BREACH OF DUTY (STATUTORY OR OTHERWISE), BREACH OF ANY SAFETY REQUIREMENT OR REGULATION, OR THE NEGLIGENCE OR OTHER LEGAL FAULT OR RESPONSIBILITY OF ANY PERSON (INCLUDING THE INDEMNIFIED OR RELEASED PARTY), WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, ACTIVE OR PASSIVE.
If either party is unable by reason of Force Majeure (as defined below) to carry out any of its obligations under this Agreement, other than the obligations to pay money when due and indemnification obligations assumed hereunder, then on such party giving notice and particulars in writing to the other party within a reasonable time after the occurrence of the cause relied upon, such obligations shall be suspended. “Force Majeure” shall include acts of God, laws and regulations, government action, war, civil disturbances, strikes and labor problems, delays of vendors, carriers, lightening, fire, flood, washout, storm, breakage or accident to equipment or machinery, shortage of raw materials, and any other causes that are not reasonably within the control of the party so affected. We will be paid our applicable standby rate, if any, during any such Force Majeure event.