These General Terms and Conditions of Sale (“Terms”) shall govern the sale by Croozer Inc. (“CROOZER”) of all products as well as all subsequent transactions between CROOZER and the purchaser (“Purchaser”). Purchaser acknowledges and agrees that these Terms shall constitute part of any final contract of sale (“Sales Agreement”) that may be entered into between Purchaser and CROOZER. In the event of any inconsistency between the terms and conditions contained in any other document and these Terms, these Terms shall prevail unless otherwise agreed upon in writing by CROOZER. CROOZER shall not be bound by any terms and conditions affixed to Purchaser’s Sales Agreement or other procurement documents that are in addition to or inconsistent with these Terms. These Terms are subject to change at CROOZER’s sole discretion at any time.
The price for all products shall be expressly set out in the Sales Agreement. Unless otherwise stated in writing by CROOZER, the price of products shall be EX Works (Incoterms 2010) and shall be exclusive of shipping charges, insurance, applicable sale, use or other taxes payable to any governmental authority, including revenue or excise tax, value added tax, turnover tax, as well as any other ancillary costs in respect of which CROOZER shall be entitled to make additional charges.
Full payment shall be due immediately upon acceptance of the Sales Agreement. Unless otherwise agreed upon in writing by CROOZER, all payments shall be made in the currency stated in the Sales Agreement and must be made directly to CROOZER in accordance with the payment options described in the Sales Agreement. Freight carrier collection charges will be applied on COD shipments.
Unless otherwise agreed upon in writing, CROOZER shall deliver products EX Works (Incoterms 2010) at any time after CROOZER has confirmed order has been accepted. Selection of the carrier and route of delivery shall be made by CROOZER unless specified in writing by Purchaser. Delivery of products to a common carrier or a registered courier shall constitute delivery to Purchaser and risk of loss shall thereupon pass to Purchaser. In no event shall CROOZER have any liability in connection with shipment, nor shall the carrier be deemed to be an agent of CROOZER. CROOZER shall also have the option of delivering products by registered mail or courier at the sole risk and expense of Purchaser.
CROOZER will use commercially reasonable efforts to meet requested dates and times for delivery of products. However, specific dates and times will not be guaranteed and time shall not be of the essence unless previously agreed upon in writing by the parties. Any products not available for shipping at the Purchaser’s requested ship date will be backordered and shipped when available, unless otherwise requested.
CROOZER shall not be liable to Purchaser for any delay or failure to deliver products arising from any cause beyond CROOZER’s reasonable control, including, without limitation, any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, illness or injury to workers, delayed or failed deliveries by subcontractors, power failure, damage or destruction of production facilities, riot, insurrection, transportation delays or defaults, delay in supply or shortages of fuel, components, raw materials or supplies, labour shortage, acts or omissions of third parties, action of any governmental authority, or any other cause beyond the reasonable control of CROOZER (the “Force Majeure”). In such event, CROOZER must promptly provide Purchaser with written notice of the Force Majeure. CROOZER’s time for delivery shall be extended for a period equal to the time lost by reasons of the Force Majeure without subjecting CROOZER to any liability or penalty. If the Force Majeure event lasts longer than forty-five (45) calendar days, CROOZER may immediately terminate all or part of the order, without incurring any liability or penalty, by providing written notice of such cancellation to Purchaser.
For greater certainty, CROOZER shall not be liable for any damages, losses, costs or expenses (collectively, the Damage”) resulting from CROOZER’s delay in delivery of products to Purchaser unless such Damage arises from the gross negligence of CROOZER. Notwithstanding the foregoing, where the gross negligence of CROOZER causes a delay in the delivery of products, Purchaser’s sole remedy shall be the payment of compensation equal to half of a percent (0.5%) per week up to a maximum of five percent (5%) of the value of the portion of the delivery which cannot be used on time for its intended purpose as a result of the delay.
The Purchaser represents and warrants to CROOZER that it is solvent. Title to the products and all proceeds of the foregoing, shall remain with CROOZER until payment in full is received from the Purchaser in respect of same.
No Sales Agreement which has been approved in writing by CROOZER may be cancelled or amended by Purchaser except as required by applicable laws.
The return of all products must be approved in writing by CROOZER prior to shipping. The Purchaser must obtain a return authorization number before shipping product back to CROOZER. CROOZER reserves the right to refuse unauthorized returns. The shipping of returns is to be prepaid by the Purchaser. Only the return of new and unused products will be accepted.
Except as otherwise specified herein, CROOZER warrants that: (i) all products purchased hereunder are free from defects in material and workmanship; and (ii) CROOZER has good title to products and the right to sell them to the Purchaser.
The warranty period is ten (10) years on the frame and one (1) year on the fabric body and cover(s) of the products (the “Warranty Period”). The Purchaser must contact CROOZER for handling of warranty claims and shipping instructions. Before a product is serviced, repaired, or replaced, the Purchaser must receive a return authorization number from CROOZER. CROOZER will not accept returns that are not clearly marked with a return authorization number. The defective or deficient products will be repaired or replaced at CROOZER’s sole and entire discretion. If shipping is required for repairs or replacement, CROOZER will pay for such shipping provided the defects or deficiencies are covered under CROOZER’s warranty.
Warranty Exclusions: This warranty excludes normal wear and tear. This warranty also excludes coverage due to: (i) misuse or abuse; (ii) improper use or maintenance; (iii) failure to observe instructions contained in user/owner manuals; (iv) negligence; (v) alteration; (vi) excessive stress; (vii) accident; (viii) use of incompatible supplies or cleaning agents; (ix) an event of Force Majeure; (x) chemical influences; or (xi) foreign object damage.
The preceding paragraphs set forth the exclusive remedy for all claims based on failure of, or defect in, products sold hereunder, whether the failure or defect arises before, during or after the warranty period, and whether a claim, however instituted, is based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise. Upon the expiration of the warranty period, all such liability shall terminate. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY, AND ALL SUCH OTHER WARRANTIES AND CONDITIONS ARE EXPRESSLY DISCLAIMED. NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE SHALL APPLY.
CROOZER’S LIABILITY WITH RESPECT TO ALL CLAIMS OF ANY KIND, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE (INCLUDING PRODUCT LIABILITY CLAIMS), FOR ALL LOSSES OR DAMAGES ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THE SALES AGREEMENT (INCLUDING THESE TERMS), OR FROM THE PERFORMANCE OR BREACH THEREOF, OR FROM ANY PRODUCTS COVERED BY OR FURNISHED UNDER THE AGREEMENT OR ANY EXTENSION OR EXPANSION THEREOF (INCLUDING REMEDIAL WARRANTY EFFORTS), SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE SPECIFIC PRODUCTS THAT GIVES RISE TO THE CLAIM.
IN NO EVENT, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL CROOZER, ITS EMPLOYEES, ITS DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, SUPPLIERS AND AFFILIATES BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF ANY PROPERTY, COST OF CAPITAL, COST OF PURCHASED POWER OR ENERGY, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, BUSINESS INTERRUPTION COSTS, DOWNTIME COSTS, INJURY TO PERSON OR PROPERTY OR DEATH, OR CLAIMS OF PURCHASERS OF PURCHASER FOR SUCH DAMAGES OR LOSSES, AND PURCHASER WILL INDEMNIFY CROOZER, ITS EMPLOYEES, AGENTS, SUPPLIERS AND AFFILIATES AGAINST ANY SUCH CLAIMS FROM PURCHASER’S PURCHASERS.
Purchaser shall indemnify, defend and hold harmless CROOZER from and against all claims, demands, causes of action (including third-party claims), losses, damages, expenses (including consequential and incidental damages, court costs and attorney fees) and liabilities of every kind and nature that CROOZER incurs as a result of Purchaser’s breach of any of Purchaser’s obligations under the Sales Agreement (including these Terms) or arising in consequence of any act or omission of the Purchaser.
Any notice, approval, consent, waiver, or other communication to be given hereunder shall be in writing and shall be deemed to be given if delivered personally, electronically, or sent by registered mail in which case such notice, approval, consent, waiver or other communication shall be deemed to be received on the second business day following the mailing thereof by registered mail:
These Terms and any document relating thereto shall be governed by and interpreted according to the laws of the Province of Alberta and applicable federal laws of Canada, without giving effect to conflicts of laws rules. Both parties hereby expressly and irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Alberta in respect of all matters arising out of or in connection with these Terms.