General: For purposes of these Terms and Conditions of Sale (the "Terms and Conditions"), Grimco and the party purchasing goods and/or services from Grimco is referred to as the "Customer". All sales of products ("Products") by Grimco to Customer are subject to these Terms and Conditions. These Terms and Conditions are the entire terms and conditions related to and governing the sale of Products and Services by Grimco to Customer and to Customer's Account. Any provisions contained in any document issued by Customer are expressly rejected. Customer's receipt of Products or Grimco's commencement of performance of services ("Services") for Customer will constitute Customer's acceptance of these Terms and Conditions. No waiver, consent, modification, amendment or change of these Terms and Conditions shall be binding unless in writing and signed by Grimco and Customer. Grimco's failure to object to terms contained in any Customer document will not be a waiver or modification of these Terms and Conditions. All orders are subject to acceptance in writing by an authorized representative of Grimco.
Account: "Account" means a business charge account with Grimco established and which shall be used only for the purchase of Products and/or Services from Grimco for Customer's business use in Canada. Customer has chosen to apply for this account for its business use to purchase Products and/or Services on open account subject to these Terms and Conditions. In consideration of the granting of Account privileges by Grimco, Customer promises to pay Grimco for any purchases made on this Account, plus any other fees or charges pursuant to these Terms and Conditions. Customer hereby agrees that this Account shall be used only for the purchase of Products and/or Services from Grimco and said purchases do not arise out of a consumer transaction and are therefore not governed by consumer credit regulations or other consumer protection legislation. Accounts inactive for a period greater than one (1) calendar year will be inactivated. Grimco retains the right to put any account on hold, refuse shipments or send to collection any Account determined to have above average days to pay or deemed as unsatisfactory account operation. Customer will receive written and verbal notification of any debt sent to collection.
Authorized Purchaser: Persons who may use the Account are those listed as "Authorized Purchasers" in the Account application. Customer agrees that it will promptly notify Grimco of any changes in the names/titles of Authorized Purchasers listed in the Account application. Customer agrees to be liable to the extent permitted by applicable law for any losses Grimco suffers due to Customer's failure to notify Grimco of any changes to the Authorized Purchasers list. Customer agrees that Grimco may rely upon all reasonable representations of persons representing themselves to be Customer's authorized agents with authority to make purchases against Customer's Account unless Customer has provided to Grimco's Manager of Credit a list of Authorized Purchasers in writing. Purchases and/or deliveries are authorized to be made without signature.
Credit Review and Approval; Credit Line/Limit: It is agreed that Grimco may investigate Customer's credit worthiness and that of any guarantor. Customer hereby authorizes any and all suppliers, credit agencies, banks, savings and loans, and/or other financial institutions to furnish credit information to Grimco to be used for determining whether to approve Customer's Account application and credit limit and for reviewing Customer's credit history and reviewing such credit limit and for any other lawful purpose. Customer agrees that Grimco may establish a limited line ("Credit Line") with a fixed credit limit for Customer's convenience and that Customer's Account balance at any one time will not exceed its Credit Line. Customer agrees that Grimco may unilaterally change Customer's Credit Line from time to time, based on Grimco's evaluation of changes in Customer's credit capacity, credit history and performance under its Account.
Invoicing/Payment Terms: Customer agrees that if an Account is opened with Grimco, all credit extended on the Account shall be governed by these Terms and Conditions. Customer agrees to accept Grimco's descriptive billing system accounting for all purchases on the Account. Grimco's invoice number will be the reference number used for billing and invoicing purposes to identify purchases of Products and/or Services. Purchase order numbers will be accepted by Grimco when available and printed on Customer's Account billing statement supplement for Customer's information only. These Terms and Conditions supersede those of any other document, including, but not limited to, executed purchase orders containing terms and conditions contrary to these Terms and Conditions. Upon establishment of an Account, Customer agrees to pay, at such place as Grimco designates, in accordance with the Account billing statement or invoice, Customer's total Account balance, and all applicable charges and fees which may then be in effect. From time to time, Grimco may, in Grimco's sole discretion, change the existing rates, charges, and these Terms and Conditions, as well as introduce new terms as may be authorized by law. Any such amendments will apply to the then existing balance of Customer's Account. Customer's failure to pay its Account pursuant to these Terms and Conditions may result in the suspension or termination of Customer's Account as determined by Grimco, in its sole discretion. Unless otherwise set forth on an invoice; Customer shall pay all amounts due within thirty (30) days after the date of the invoice. Grimco reserves the right to require from Customer full or partial payment in advance, or other security that is satisfactory to Grimco, at any time that Grimco believes in good faith that Customer's financial condition does not justify the terms of payment specified.
Late Charge: If Customer fails to pay any amounts when due, Customer shall pay Grimco interest thereon at a periodic rate of one and one-half percent (1.5%) per month (18% per annum) (or, if lower, the highest rate permitted by law), together with all costs and expenses (including without limitation reasonable legal fees and disbursements and court costs incurred by Grimco in collecting such overdue amounts or otherwise enforcing Grimco's rights hereunder.
Dishonoured/NSF Cheque Fees: A service charge fee of $25 for each cheque returned by Customer's bank will be assessed; provided that such charge does not violate any laws of the applicable jurisdiction.
Pricing: Pricing for Grimco Products and Services is subject to change, in Grimco's sole discretion, with or without notice. All prices quoted by Grimco are valid for thirty (30) days, unless otherwise stated in writing. All prices set forth on Products will be as specified by Grimco or, if no price has been specified or quoted, will be Grimco's price in effect at the time of shipment. All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions which are not part of Grimco's original price quotation.
Taxes: Applicable taxes will be charged on the total net purchase price amount of orders unless an exemption certificate from the applicable governmental authority is provided in advance of purchase. Prices for the Products exclude all sales, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any Products covered hereby, all of which taxes and duties must be paid by Customer.
Delivery; Cancellation or Changes by Customer: The Products will be shipped to the destination specified by Customer, F.O.B. Grimco's shipping point. Grimco will have the right, at its election, to make partial shipments of the Products and to invoice each shipment separately. Grimco reserves the right to stop delivery of Products in transit and to withhold shipments in whole or in part if Customer fails to make any payment to Grimco when due or otherwise fails to perform its obligations hereunder. All shipping dates are approximate only, and Grimco will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond Grimco's reasonable control. In the event of a delay due to any cause beyond Grimco's reasonable control, Grimco reserves the right to terminate the order or to reschedule the shipment within a reasonable period of time, and Customer will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay. Products as to which delivery is delayed due to any cause within Customer's control may be placed in storage by Grimco at Customer's risk and expense and for Customer's account. Orders in process may be cancelled only with Grimco's written consent and upon payment of Grimco's cancellation charges. Orders in process may not be changed except with Grimco's written consent and upon agreement by the parties as to an appropriate adjustment in the purchase price therefor.
Title and Risk of Loss: Notwithstanding the trade terms indicated above and subject to Grimco's right to stop delivery of Products in transit, title to and risk of loss of the Products will pass to Customer upon delivery of possession of the Products by Grimco to the carrier.
Lost/ Damage Claims: Claims for lost or damaged goods delivered on a freight collect basis are the sole responsibility of Customer. Grimco is not liable for these shipments. Grimco will handle all claims for lost or damaged goods sent on a, freight prepay and add basis. Grimco requires proper documentation to proceed with carrier claims on behalf of Customer. Products must be inspected upon delivery and Customer will require the driver to clearly note the damages on the Pro-bill. Please call a Grimco Sales Representative within forty eight (48) business hours of receipt of damaged goods to obtain a return merchandise authorization number if warranted for an Account credit, and arrange for reshipment of the Products. Grimco will not be liable for lost or damage claims against Pro-bills signed "free and clear". For the purposes of these Terms and Conditions, a "business hour" means any hour during a day, other than a Saturday or a Sunday, on which the Toronto Dominion Bank in Toronto, Ontario is open for commercial banking business during normal hours
Return Policy: Customer must obtain a return merchandise authorization number from a Grimco Sales Representative prior to returning Products. Any Products returned must be in original packaging, free of any damage or defect and in sellable condition. Grimco will refuse all returned merchandise not accompanied by return merchandise authorization number documentation. All returns are subject to a twenty percent (20%) restocking charge except for defective Products covered by a valid manufacturer warranty. Credit notes will be processed only when a Product is returned within thirty (30) days of the return merchandise authorization issue date. NOTE: Custom cut material, special order Products and equipment parts are deemed NON-RETURNABLE.
Disclaimer of Warranty: Products supplied by Grimco that are obtained by Grimco from an original manufacturer or third party supplier are not warranted by Grimco, but Grimco agrees to assign to Customer any warranty rights in such Products that Grimco may have from the original manufacturer or third party supplier, to the extent such assignment is allowed by such original manufacturer or third party supplier. In no event shall Proveer have any obligation to make repairs, replacements or corrections required, in whole or in part, as the result of: (i) normal wear and tear, (ii) accident, disaster or event of force majeure, (iii) misuse, fault or negligence of or by Customer, (iv) use of the Products in a manner for which they were not designed, (v) causes external to the Products such as, but not limited to, power failure or electrical power surges, (vi) improper storage and handling of the Products or (vii) use of the Products in combination with equipment or software not supplied by Seller. If Grimco determines that Products for which Customer has requested warranty services are not covered by the warranty, Customer shall pay or reimburse Grimco for all costs of investigating and responding to such request at Grimco's then prevailing time and materials rates. If Grimco provides repair services or replacement parts that are not covered by the warranty, Customer shall pay Grimco for such services and/or parts at Grimco's then prevailing time and materials rates. Except as may be permitted pursuant to the applicable warranty from an original manufacturer or third party supplier or by applicable law, ANY INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR OTHER TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN GRIMCO WITHOUT GRIMCO'S PRIOR WRITTEN APPROVAL, OR ANY USE OF REPLACEMENT PARTS NOT SUPPLIED BY GRIMCO, SHALL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES WITH RESPECT TO THE AFFECTED PRODUCTS. THE OBLIGATIONS CREATED BY THE PRODUCT WARRANTY TO REPAIR OR REPLACE A DEFECTIVE PRODUCT SHALL BE THE SOLE REMEDY OF CUSTOMER IN THE EVENT OF A DEFECTIVE PRODUCT. EXCEPT AS EXPRESSLY PROVIDED IN THE WARRANTY, GRIMCO DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. GRIMCO DOES NOT REPRESENT OR WARRANT THAT THE PRODUCTS ARE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.
Payment Application: If partial payment is made, unless Customer directs otherwise in writing with each remittance, payments will be applied first to any late or service charges, then against matching open items on the billing statement or invoice, or if not possible, against open items in order of age, with any remaining payment applied as a general credit (on account) reducing unpaid balances, as Grimco may determine in its sole discretion. Credit notes may be applied against older Account invoices or used against future purchases.
Security: As continuing security for the repayment of all money now or in the future owing to Grimco by Customer including, without limitation, the prompt payment, as and when due, of the purchase price of the PMSI Collateral (defined below), or payment of the value given by Grimco to Customer for the purpose of enabling Customer to acquire rights in or to the PMSI Collateral, and the performance of all of the obligations, covenants and warranties of Customer to Grimco under this Agreement or otherwise arising (collectively, the "Obligations"), Customer grants to Grimco a continuing, specific and fixed security interest, and Grimco takes or reserves a security interest, in all goods to be supplied, sold or provided to Customer by Grimco or for which the giving of value by Grimco shall enable Customer to acquire rights in such goods, whether or not such goods constitute inventory of Customer, and including all accretions, substitutions, replacements, additions and accessions to any of them and all proceeds of any of the foregoing (collectively, the "PMSI Collateral"). Customer agrees that Grimco may sign for Customer, as debtor, such financing statements and other documents and instruments as may be required to perfect Grimco's security interest in the Products sold to Customer on credit terms; alternatively, Customer agrees to execute any documents required by Grimco to perfect such security interest.
Default: If Customer does not pay its outstanding balance of its Account when due or if Customer should breach any other of these Terms and Conditions, Grimco may demand the entire balance of the Account to be paid immediately and, as provided by law, commence any legal action for collection of the balance due. Grimco may also pursue any other legal action or remedy deemed necessary or appropriate with respect to any such breach. Customer agrees that Grimco may, at its option, pursue to judgment and collection a separate action or actions for the Account or Accounts at each of Grimco's locations. Customer agrees to pay all costs of collection, including but not limited to, reasonable legal fees. Grimco also reserves all rights and remedies pertaining to repossession and resale of any repossessed Products as provided by law. All remedies herein are cumulative with all other remedies Grimco may have, whether provided by agreement or by law.
Limitation of Liability: NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (i) THE LIABILITY OF GRIMCO UNDER THESE TERMS AND CONDITIONS (WHETHER BY REASON OF BREACH OF CONTRACT, TORT, INDEMNIFICATION, OR OTHERWISE, BUT EXCLUDING LIABILITY OF PROVEER FOR BREACH OF WARRANTY (THE SOLE REMEDY FOR WHICH SHALL BE AS OTHERWISE PROVIDED IN THESE TERMS AND CONDITIONS)) SHALL NOT EXCEED THE TOTAL PURCHASE PRICE PAID BY CUSTOMER TO GRIMCO WITH RESPECT TO THE PRODUCT(S) GIVING RISE TO SUCH LIABILITY, and (ii) IN NO EVENT SHALL GRIMCO BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE OF FACILITIES OR EQUIPMENT, LOSS OF REVENUE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL), REGARDLESS OF WHETHER PROVEER (a) HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH POSSIBILITY WAS REASONABLY FORESEEABLE OR (b) IS NEGLIGENT.
Cancellation: Either party shall have the right to cancel Customer's Account at any time and for any reason as it relates to purchases or future purchases. Customer, of course, remains obligated to pay for any balance existing prior to cancellation and remains responsible for payment of all special order Products ordered by Customer before cancellation.
Offsets/Charge Backs: The Customer agrees that the balance due on the Customer's Account will not be reduced, and that the payments due on the Customer's Account will not be delayed in any manner, by way of any offsets or charge backs of any nature, unless specifically agreed to in writing by Grimco.
Changes in Terms: Customer agrees that Grimco may amend these Terms and Conditions, as well as introduce new terms (including without limitation, non-sufficient cheque charges and other fees) in Grimco's sole discretion. Any such amendments will apply to the then existing balance of Customer's Account to the extent permitted by law.
Assignment: Grimco reserves the right to assign Customer's Account at any time, without prior notice to Customer.
Severability: If, in any jurisdiction, any provision of these Terms and Conditions or their application to Grimco or Customer and its guarantor (if any) is restricted, prohibited or unenforceable, such provision shall, as to such jurisdiction, be ineffective only to the extent of such restriction, prohibition or unenforceability without invalidating the remaining provisions of these Terms and Conditions and without affecting the validity or enforceability of such provision in any other jurisdiction or without affecting its application to other parties or circumstances.
Sales Invoices and Statements: Original sales invoices will not be mailed with or accompany Account billing statements; therefore, Customer must retain the invoice copy received at the time of purchase for Customer's records. Invoices can be delivered by mail, electronically or by fax. Duplicate invoices will be provided upon request. Account billing statements are provided as a courtesy to Customer and a reminder of indebtedness; they are not required in order to affect payment on Customer's account.
Governing Law: THESE TERMS AND CONDITIONS SHALL BE GOVERNED BY THE LAWS OF THE PROVINCE OF ONTARIO AND THE LAWS OF CANADA APPLICABLE THEREIN. Customer and its guarantor, if any, hereby consent to venue in any court of competent jurisdiction selected by Proveer.