TERMS AND CONDITIONS


Terms and Conditions of Sale

  1. Introduction

These Terms and Conditions of Sale (as same may be updated, amended or modified from time to time, the “Terms”) govern and apply to all sales of products and/or the performance of all services by A.O. Wilson Ltd. (the “Seller” or “AOW”). By placing an Order, the Buyer agrees to be bound by these Terms. These Terms are subject to change without notice. Continued purchases after such change constitutes acceptance of the updated Terms.

For the purposes of these Terms:

"BPO" or "Blanket Purchase Order" means a written purchase order of the Buyer to purchase a certain quantity of Products over a specified period and at pre-negotiated pricing, in form and content satisfactory to AOW in its sole discretion and which has been accepted by AOW in writing;  

“Buyer” means the purchaser of the Products and/or Services pursuant to the Contract;

"CCD Buyer" means a Buyer that has not been pre-approved for, nor granted, any special or net payment terms by AOW. 

“Contract” means the contract formed between the Buyer and AOW pursuant to a written contract (of which these Terms form a part), pursuant to an Order which has been accepted by AOW in writing (of which these Terms shall be deemed to form a part) with respect to the Work;

“Products” means the goods, materials, parts and/or products to be sold by AOW to the Buyer, or to be supplied by AOW as part of the Services, pursuant to and as specified in the Contract;

“Purchase Price” means the price payable by the Buyer to AOW pursuant to the Contract for the Work, including all applicable taxes;

“Order” means a written purchase order or service order of the Buyer in form and content satisfactory to AOW in its sole discretion which has been accepted by AOW in writing;

“Services” means the services to be provided by AOW to the Buyer pursuant to and as specified in the Contract; and

“Work” means the Products and the Services.

  1. Applicability

These Terms form an integral part of each Order and Contract and any proposal, quotation, or service by AOW. No changes, additions or amendments hereto shall be binding upon AOW unless in writing and signed by an authorized AOW representative.

  1. Order Acceptance and Order Changes

All orders from the Buyer are subject to acceptance by an authorized representative of the Seller. The Seller reserves the right to reject any order for any reason. Orders must be confirmed and accepted in writing by the Seller, in the form of a sales Order, to be considered valid and shall be deemed to incorporate these Terms. The Buyer waives any right of notice of acceptance of an Order.

Requests by the Buyer for any changes to an Order, including but not limited to, changes in Products, quantities, delivery terms, and terms of payment, must be made to AOW in writing. All such change requests are subject to AOW's written acceptance, which may be withheld in AOW's sole discretion, and may result in adjustments to the Purchase Price and/or delivery schedules which must be agreed to in writing as part of a contract change order.

Unless otherwise specified in the Contract or approved in writing by the Seller in its sole discretion (which approval may be conditional upon or subject to compensatory payment by Buyer), the Buyer shall not be entitled to cancel the Contract or any Order. 

  1. Pricing

The price for the Work sold to Buyer shall be documented in the Order and agreed upon by both the Buyer and the Seller. Prices for Products are based on F.O.B. Seller’s distribution location, unless otherwise agreed upon by the Buyer and the Seller.

  1. Taxes

Unless otherwise specified in the Contract, all taxes are extra and are in addition to the amounts otherwise payable by Buyer under the Contract and are not included in AOW's base or net pricing. For the avoidance of doubt, the Buyer shall pay AOW all applicable taxes due and payable in connection with the provision of the Work to the Buyer including, without limitation, all Harmonized Sales Tax, Goods and Services Tax, provincial sales tax and any other forms of value added or sales tax as are from time to time chargeable and payable at law in connection with the Work.

  1. Payment

Unless otherwise specified in the Contract, including in the applicable Order, the following payment terms shall apply to Orders:

 

  • For CCD Buyers and on the sale of stock Products only, payment of the Purchase Price and all applicable shipping costs is due by Buyer at the time of order placement unless otherwise agreed to by Seller in writing. An invoice shall be issued to the Buyer at the time of order placement.

 

  • For Buyers with net 30 payment terms and on the sale of stock Products only, an invoice shall be issued to the Buyer once such Products have been shipped out of Seller’s designated warehouse.

 

  • For CCD Buyers and on the sale of custom Products, a 50% deposit against the Purchase Price is required and shall be paid by such Buyer at the time of order placement unless otherwise agreed to by Seller in writing. Once such Products arrive at the agreed upon warehousing location, the Buyer shall pay the remaining amount of the Purchase Price plus all applicable shipping costs and conditional upon receipt of such payment the Seller shall ship out the Products to the Buyer. A final invoice shall be issued to the Buyer once such Products arrive at the agreed upon warehousing location.

 

  • For Buyers with net 30 payment terms and on the sale of custom goods, a 25% deposit against the Purchase Price is required and shall be paid by such Buyer at the time of order placement unless otherwise agreed to by Seller in writing. Once such Products arrive at the agreed upon warehousing location, the Buyer shall have option of, and shall elect in writing to the Seller to, either:

 

  1. Pay an additional 25% against the Purchase Price and elect to wait up to 3 months to collect the Products. After the expiry of such maximum 3-month period, the Products will, to the extent not already delivered to Buyer, be shipped to the agreed upon location and Buyer will be invoiced for the remaining balance of the Purchase Price, plus all applicable shipping costs.

 

A storage fee of $30/skid/month will apply and be payable by Buyer for each additional storage month that passes beyond the initial 3-month storage term, to a maximum of 3 additional months. After 6 months storage, the Seller shall be entitled to automatically, and without further direction from Buyer, ship out the uncollected or undelivered Products and issue an invoice to the Buyer for the remaining balance of the Purchase Price, plus all applicable shipping costs and any charges associated with the Order, including but not limited to, tooling, artwork fees, shipping and storage/warehousing. All Products that have been ordered by Buyer and held in storage by AOW shall be at Buyer's risk.

or

  1. Elect to have the full amount of the Order shipped and invoiced, including, but not limited to tooling, artwork fees and shipping.

All invoices shall be deemed admitted and conclusive against the Buyer unless disputed in writing by Buyer within 7 days of the invoice date. All payments by Buyer shall be made without any deduction, set off, counterclaim or abatement. Any amount which is not paid by Buyer when due shall bear interest at the rate of 2.0% per month compounded monthly (26.8% annually) until the date of actual payment. AOW reserves the right (regardless of any contrary direction) to apply any monies received by it on the Buyer's account to such invoices and accounts of the Buyer and as to principal or interest as AOW deems fit. The Buyer agrees to indemnify and hold harmless AOW from and against any and all losses, liabilities, claims, costs and expenses whatsoever (including legal expenses on a solicitor and his own client basis) suffered or incurred by AOW in the collection (including execution) of any monies due to AOW or in enforcing any of AOW's rights under the Contract.

  1. Delivery & Shipping

Delivery dates are estimated and not guaranteed. The Seller is not liable for any delays in delivery. Buyer may elect to arrange their own delivery or have the Seller arrange delivery. Shipping costs are the Buyer's responsibility and will be added to the Order total. AOW accepts no liability for damages in transit. In the event of any such damage in transit, Buyer's sole recourse is to file a claim with the transportation company. If the Buyer fails to accept delivery of any Products at the delivery time set out in the Contract, AOW shall be entitled to arrange for storage of the Products at the Buyer's sole risk and expense and notwithstanding the foregoing, the Buyer shall pay any part of the Purchase Price which becomes due on delivery, as if delivery had taken place.

 

  1. Title and Risk of Loss

Title to the Work shall remain vested in AOW, and nothing contained in the Contract shall be deemed to have the effect of transferring title in any Work, until such time as the amounts due for the Work have been paid for in full to AOW. The Buyer shall have care, custody and control of, and shall bear the risk of physical loss with respect to, the Work, even if title has not passed, upon whole or part delivery of the Work to the Buyer in accordance with the Contract.

 

  1. Returns & Refunds

Prior written authorization of an authorized representative of AOW must be obtained by Buyer before returning Products, and AOW may grant or withhold such authorization in its sole discretion. Approved returns may be for credit or refund, as determined by AOW in its sole discretion from time to time. All returned Products must be in saleable condition, be in original containers and/or packaging, and will be subject to inspection and a 20% restocking fee. Return freight is to be prepaid by the Buyer.

 

Notwithstanding the foregoing, custom or special-order Products are non-returnable and non-refundable.  

 

  1. Warranty

AOW will, to the extent permitted by the applicable third party manufacturer, extend to the Buyer the manufacturer’s warranty for Products sold by AOW which are manufactured by third party manufacturers (“Distributed Products”) in effect at the time of purchase, if any. AOW will provide reasonable assistance to the Buyer to secure the benefits of any applicable manufacturer’s warranty when inspection proves the Distributed Products to be defective and eligible for a manufacturer’s warranty claim, all subject to the terms and conditions, including as to warranty length, eligibility criteria and exclusions, that are contained in the manufacturer’s warranty. Notwithstanding anything to the contrary, unless otherwise specifically provided in the Contract, AOW does not provide any warranties or guarantees of its own, express or implied, with respect to any Distributed Products. For details regarding the terms and conditions of the applicable manufacturer’s warranty for any particular Distributed Products, please contact your AOW representative.   

 

Notwithstanding any other provision of the Contract, the warranty set out above in respect of Distributed Products: (a) is the only warranty applicable to the Work and all other warranties, conditions, guarantees or similar obligations, whether express or implied by fact, by law (including any statute or regulation), by custom or trade usage or by any course of dealing, including, without limitation, any implied warranties of quality, merchantability, fitness for purpose and fitness for a particular purpose or otherwise, are excluded from the Contract and are inapplicable, and (b) is the only remedy of the Buyer arising out of defective or deficient Work.

 

  1. Termination for Buyer Default

AOW shall have the right to terminate the Contract or any Order upon the occurrence of any one of the following events if the same is not cured within 30 days following the delivery by AOW to the Buyer of a written notice of such event, or, if capable of being cured but not within such period, if the Buyer has not commenced the cure within such period and does not thereafter diligently pursue such cure (provided that such 30 day or longer cure period does not apply to a failure of the Buyer to make the payment(s) due within the agreed payment term): (a) the Buyer shall have defaulted in its performance under any provision of the Contract; (b) AOW does not receive from the Buyer the payment(s) due within the agreed payment term; or (c) the Buyer shall have ceased to conduct the normal course of its business, seeks protection under bankruptcy, insolvency, reorganization or creditor moratorium laws, becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, if proceedings are initiated by or against the Buyer seeking relief, reorganization or rearrangement under laws relative to insolvency, or if a receiver, liquidator or trustee is appointed in respect of any material property or assets of the Buyer. In case of any such termination, AOW shall, in addition to any and all other rights and remedies that may be available by law or in equity or as otherwise provided in the Contract, be entitled to receive from the Buyer and the Buyer shall promptly pay to AOW upon demand all costs and expenses incurred by AOW by reason of and/or in connection with such termination of the Contract or Order.

  1. Limit of Liability

Notwithstanding any other provision of the Contract including these Terms, AOW shall in no event be liable to the Buyer or any other person with respect to any Product or Service sold or provided by AOW, by way of indemnity or by reason of any breach of contract, warranty, statutory duty, tort, negligence, strict liability or otherwise, whether or not the possibility of such losses or damages were known or should have been known by AOW, (a) for any indirect, special, incidental, punitive, aggravated, exemplary or consequential loss or damage including loss of production, revenues, profits, opportunities, market or use, or economic loss, which may be suffered by the Buyer or any other person, (b) for any loss or damage which may be suffered by the Buyer or any other person as a result of any suspension or cancellation of the Contract or any Order by AOW in accordance with its terms, or (c) in an amount in excess of the Purchase Price paid by the Buyer to AOW for such Product or Service.

  1. Blanket Purchase Orders

The following provisions are specific to, and apply only to, Blanket Purchase Orders:

Effective Period: The Buyer and the Seller shall both agree to the duration for which the BPO is valid (the "Effective Period"). This can range from a few months to several years.

Scope of Work: The Buyer and the Seller shall both agree to the Products covered by the BPO.

Pricing & Payment Terms: The Buyer and Seller shall both agree to the pre-negotiated prices for Products and the terms of payment.

Quantity:  The Buyer and Seller shall both agree to the maximum or minimum quantities of Products that can or must be ordered under a BPO during the Effective Period.

If the Buyer does not acquire a sufficient amount of Products to satisfy its minimum purchase commitment in the BPO within the Effective Period, the Seller will and shall be entitled to issue an invoice to Buyer for the remaining quantity of Products at the end of the Effective Period, which the Buyer shall be obligated to pay upon receipt of such invoice.

Delivery Schedule: The Buyer and Seller shall both agree to specifics on delivery times, including lead times for orders and any required delivery schedules.

  1. Governing Law

The Contract, including these Terms, shall be governed by and construed and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein (but without giving consideration to any conflict of law rules). AOW and the Buyer agree that the courts of Ontario have jurisdiction to entertain any legal proceedings in respect of the Contract, including these Terms, and AOW and the Buyer hereby irrevocably consent to and attorn to the non-exclusive jurisdiction of such courts, provided that AOW may take proceedings for enforcement in any jurisdiction.  

  1. Entire Agreement

The Contract, including these Terms, is the complete and entire agreement between AOW and the Buyer with respect to the subject matter of the Contract. AOW hereby objects to and shall not be bound by any additional, different or conflicting terms, whether printed or otherwise, in any other communication between AOW and the Buyer (including on any of the Buyer's forms), it being understood that the terms and conditions of the Contract (including these Terms) shall prevail notwithstanding any such additional, different or conflicting terms.

  1. Assignment

No assignment of the Contract, in whole or in part, or of monies due or to become due under the Contract, shall be made by the Buyer without the prior written consent of AOW, and if such consent is provided the Buyer shall remain liable, jointly and severally with the assignee, for the obligations of the Buyer under the Contract. AOW in its sole discretion may assign the Contract to any of its affiliates or related entities or to any purchaser of all or substantially all of the assets of AOW.

  1. Force Majeure

The Seller shall not be considered in default or be liable for any failure to perform any obligation under the Contract in the event and to the extent that such failure is caused by a condition of force majeure. A condition of force majeure is an event beyond the reasonable control of AOW which prevents or impedes the performance of the Contract by AOW, including without limitation, the following: change in law, war, revolution, riots, insurrection, civil commotion, invasion, armed conflict, hostilities, acts of terrorism, epidemics, pandemics, sabotage, theft, explosions, fires, earthquakes, floods, other natural physical disaster, embargo, prohibition on import and exportation of materials or equipment or services, contamination, acts of God, strikes and work stoppages, slowdowns or other labour actions.