1. Orders. STOBAG North America Corp. (“STOBAG”) confirms all orders from a customer (the “Customer”) in writing, by email or fax (according to the customer details set forth on the STOBAG master data sheet or order form). Additional sales terms are posted at and can be viewed by the Customer at www.stobag.com in PartnerNet (Login details were assigned separately) or can be requested by fax from STOBAG. The data contained on the order confirmation are binding for the order, and cannot be cancelled once accepted by STOBAG. Customer must notify STOBAG of any changes corrections to an order that has not been accepted within 24 hours of receiving the confirmed order confirmation from STOBAG. In the absence of such notification, the terms of delivery and the data on the order confirmation are considered accepted.
2. Delivery. Delivery dates are estimates and not guarantees and are based on conditions at the time of this Agreement. STOBAG will use reasonable commercial efforts in the ordinary course of its business to affect deliveries as specified, but in no event shall STOBAG be liable for any damage, consequential or otherwise, arising from any failure of STOBAG to meet any delivery date. Customer shall not be entitled to terminate an order in the event of a late delivery of the Product. Delivery terms shall be interpreted according to the “INCOTERMS” in force at the time of delivery. Unless otherwise expressly agreed, the term of delivery shall be FOB Origin and all transportation and other charges shall be paid for by the Customer, unless specified otherwise.
3. Design changes. STOBAG products undergo continuous modifications or improvements. Product supplied can incorporate any changes in construction or design adopted before delivery. STOBAG is entitled to supply the latest version of a Product, even without prior notification to a Customer. Customer shall not be entitled to terminate an order in the event of a delivery of a modified or improved Product.
4. Risk of Loss: Risk of loss with respect to the Product furnished under this Agreement shall pass to the Customer at the time of delivery of the Product to the carrier for shipment.
5. Prices. Quotations from STOBAG remain valid for three months. Goods are sold at prices and on conditions, terms and discounts in force at the time of delivery but notice of any alteration in prices, conditions, terms or discounts made after acceptance of the order will be given to the Customer who may within seven days from the date of such notice cancel the order by written notice to the STOBAG. The prices of STOBAG are ex-works, excluding taxes and transport insurance. STOBAG reserves the right to make price adjustments in the event of specific circumstances (including raw material price fluctuations).
6. Payment: Prior to commencing delivery of the Product, STOBAG shall invoice Customer for the purchase price of the Product (which invoice may also reflect charges for freight, handling, taxes and other amounts payable to STOBAG). All amounts specified in any such invoice shall be paid by Customer to STOBAG at the times and in accordance with the invoice. Customer shall provide any deposit(s) noted on the invoice on the dates noted therein. All deposits are non-refundable. Any amount due hereunder from Customer and not paid by the due date hereon shall bear interest at the rate of 20% per annum. Such interest shall be in addition to and without limitation of any other right or remedies which STOBAG may have at law or in equity. Customer agrees to pay any legal fees and costs incurred by STOBAG in the collection of any delinquent amounts due to under this Agreement. Customer shall be responsible for all taxes arising out of or related to the provisions of products and services from STOBAG, including but not limited to sales excise taxes. Such taxes shall be in addition to the purchase price unless otherwise specified. Should any government or governmental body, board or agency impose or increase any applicable sales, excise or other taxes beyond those in effect at the date of this contract, STOBAG reserves the right to increase prices to the Customer by an amount sufficient to cover such additional taxes. STOBAG will review the Customer’s credit worthiness prior to STOBAG’s acceptance of an order.
7. Applicable law. The order and this agreement shall be construed, interpreted and enforced in accordance with, and the respective rights and obligations of the parties shall be governed by, the laws of the Province of Ontario and the federal laws of Canada applicable therein, and each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of such province and all courts competent to hear appeals therefrom.
8. Packaging/Shipping. The costs for packaging and shipping of the goods shall be paid by the Customer. STOBAG shall not be liable for transport damage. The provision of requisite personnel and equipment necessary for unloading of Product is the responsibility of the Customer.
9. Insurance. STOBAG will at Customer’s request and for the account of Customer arrange insurance of the goods and report shipments of goods to the insurers but shall not be liable in negligence or otherwise for any error in complying with such request or any omission to do so.
10. Shipment. If full payment for the Product has not been made when shipment commences, STOBAG may select the manner and routing of each shipment and the shipping and other agents to be used in connection therewith. The Customer shall accept any such selection and shall reimburse STOBAG for all charges and expenses thereby incurred by it.
11. Claims for shortage. No claim for alleged shortage in Products delivered will be considered by STOBAG unless made by the buyer within five days after the arrival at the Customer place of delivery on which the shortage is claimed.
12. Acceptance by Customer: The Product shall be deemed accepted by Customer on the date of receipt of the Product by Customer. The Customer shall have five calendar days after such date to give Company written notice that the Product does not conform to any drawings and specifications supplied by Customer and to specify in detail the reasons therefore. STOBAG may then, at its sole election, proceed to make any necessary corrections. Under no circumstances shall Customer be entitled to revoke acceptance of Product subsequent to acceptance thereof.
13. Warranty. Subject to the conditions and terms set out in the Product Warranty attached, the current warranty period for STOBAG products (finished awnings) is five years from the invoice date. For motors and controls STOBAG may consider a voluntary warranty extension, in its sole, absolute and unfettered discretion of three years after the expiry of the applicable statutory warranty period. Assembly, removal, travel expenses and or any other expenses associated to a warranty claim shall not be reimbursed. Customer must immediately inform STOBAG in writing of any defects discovered during the warranty period failing which a warranty claim shall be rejected. STOBAG’s sole liability under this warranty is to replace, free of charge, any part which, within the period specified, is returned to STOBAG and which STOBAG accepts as having been defective in material or workmanship. STOBAG warranty terms are further defined and explicitly documented under the warranty terms as separately documented.