TERMS AND CONDITIONS OF SALE – CONTINENTAL RAILWORKS INC.
1. Scope. These Terms and Conditions of Sale (“T&Cs”) apply to all sales of products and parts (“Products”) by Continental Railworks inc. (“Continental”), and are made a part of every proposal, quotation, or purchase order issued or accepted by Continental to or from any buyer of such Products (“Buyer”). Buyer shall be deemed to have accepted these T&Cs by purchasing Products from Continental. Any additional or different terms already or hereafter proposed by Buyer, whether in an documentation or other communication or otherwise, are hereby rejected and shall not apply.
2. Pricing. All pricing provided by Continental is exclusive of applicable taxes, duties and insurance and transportation costs. Continental may arrange for shipping at Buyer’s request and cost. Products are sold Ex Works Continental’s manufacturing facility located in St-Laurent, Quebec, Canada (Incoterms 2020 Edition). Quotes are valid for 60 days only, except as otherwise expressly stated.
3. Payment. Except as otherwise expressly provided in a quote, all amount are payable 30 days from invoicing. Interest will be charged on past due account at 1.5% per month (19.56% per year).
4. Installation. Buyer acknowledges that proper installation, periodical adjustment and maintenance is critical to the safety of the Products. Buyer must comply with the directions set out in the Product manual provided by Continental. If you have not received a Product manual you must contact Continental to obtain a copy prior to installing any Product. Any liability arising from the failure to comply with the foregoing shall be assumed by Buyer, which shall indemnify, defend and hold harmless Continental, its directors and officers from any claims, liabilities, demands, lawsuits, fines, costs and expenses (including reasonable attorney’s fees) arising from such failure. Buyer may not settle any indemnified claim without Continental’s prior consent.
5. Warranty. Continental warrants to the original Purchaser that all Products shall be free from defects in material and workmanship for a period of 12 months from the date of purchase. If such a defect appears during the warranty period, Continental will repair or replace the defective Product without charge. The Product must have been installed, periodically adjusted and maintained in accordance with the Product manual in order to be eligible for this warranty. The warranty does not cover defects or damage to products that have been misused or damaged due to accident or fortuitous event. Continental disclaims any and all other representations, warranties or conditions, whether express, implied, provided by law or custom, including, without limitation, any warranties of merchantability, fitness for purposes and non-infringement.
6. Warranty Service. Continental reserves the right to inspect Products claimed to be defective for warranty purposes and dispose of the claim as it sees fit, including repair or replacement. Unauthorized repair prior to inspection voids the warranty. Use of parts not supplied by Continental in conjunction with the Products voids the warranty. All Products claimed to be defective must be returned to Continental for warranty consideration within 30 days of the claim. All items shipped from Continental for warranty reasons will be sent freight prepaid, and all items returned to Continental must be sent freight prepaid.
7. Liability. To the full extent permitted by law, in no event shall Continental be liable for any consequential, indirect, incidental, special, exemplary damages or punitive damages, including without limitation any damages arising out of any interruptions, delays, loss of profits, loss of business, or anticipatory profits, regardless of whether the possibility of such damages were made known or was foreseeable. The maximum liability of Continental to Buyer under any theory of tort, contract, strict liability, or other legal or equitable theory, arising out of or relating to this agreement, will not exceed the total amount paid by Buyer to Continental under an order for the Products from which the claim arose.
8. Miscellaneous. These T&Cs are governed by the laws applicable in the Province of Ontario without giving effect to conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these T&Cs. Any dispute or claim arising out of or relating to these T&Cs will be exclusively brought before the courts of competent jurisdiction in the city of Ottawa, excluding any other court.
9. Language. Les parties reconnaissent avoir eu l’occasion de négocier librement les stipulations essentielles de la présente convention. Il est de la volonté expresse des parties que la présente convention soient rédigée en anglais seulement. The parties acknowledge that they have had the opportunity to freely negotiate the essential provisions of this Agreement. The parties have expressly requested that this Agreement be drawn up in English only.
