1. ORDERS. All orders will be placed by a distributor with STOBAG and all correspondence relating to such orders shall be directed to STOBAG. Each order may be accepted or rejected by STOBAG. No order placed will be deemed accepted until a formal acceptance of the order confirmation has been dispatched to the distributor by STOBAG and approved by the distributor. STOBAG is not under any obligation to accept all or any orders tendered by the distributor. Each order will be recorded on an order form, which when accepted by STOBAG, will each constitute separate contracts of sale between STOBAG and the distributor. STOBAG shall supply the STOBAG products pursuant to an accepted order form and prepare the necessary documentation to ship or pick up the STOBAG products.
1.02.1 The minimum order amount of any shipment is $150.00 but is subject to change by STOBAG (the “Order Minimum”). If the Order Minimum is not met, and STOBAG elects in its sole discretion to fill such order, a handling fee of $50.00 plus applicable taxes shall apply to the order to cover materials and labour.
1.02.2 All orders must be submitted on STOBAG order forms that detail precise measurements, fabrics, frame, profile colours, distributor purchase order, requested date, motors and accessories. All STOBAG order forms must be fully completed, contain a STOBAG part number (if available) and a detailed description of the STOBAG product ordered to be a valid order.
1.02.03 Cancellations or changes to accepted orders are not permitted without the express, written consent of STOBAG, in its sole and absolute discretion. STOBAG reserves the right to deny any requested changes to price or configuration of STOBAG product. Any changes to an order after the start of production where material has already been processed will be invoiced to the distributor together with the hourly expenditure and the net flat rate. Notwithstanding the foregoing, if STOBAG approves a cancellation of order after acceptance, a cancellation fee of either 30% of the total order value or the costs incurred by STOBAG as a result of cancellation, whichever is higher, shall apply to the order and not be refunded.
2. PRODUCT MODIFICATIONS OR CHANGES. STOBAG may make modifications to the design of or fitments to any of the STOBAG products or make improvements to them at any time but shall be under no obligation to apply the same to any STOBAG products previously purchased by the distributor. STOBAG reserves for itself and associated companies the right to discontinue the manufacture of any of the STOBAG products without incurring any obligation or liability to the distributor. The distributor agrees that, except as approved in writing by STOBAG, it will not make any modifications to, or in any way vary, the specification of STOBAG products supplied to it by STOBAG during installation, repair or service to the STOBAG product sold.
3. PRICE. Unless otherwise agreed between the distributor and STOBAG, prices for the STOBAG products on an accepted order shall be those specified in the price list current at the date of delivery as the same may have been adjusted and notified to the distributor by or on behalf of STOBAG. Quotations on STOBAG products remain valid for 30 days.
3.02. Payment by the distributor shall include all fiscal charges and costs involved in transferring the full amounts due to STOBAG. STOBAG invoice payment terms for all sales are 1% discount if paid within 10 days, or Net 30 days from date of invoice unless otherwise specified on the invoice or order confirmation, in which case, invoice or order confirmation shall prevail.
3.03 For continued shipment, the distributor must be in good standing and within credit limits as approved by STOBAG, in its sole and absolute discretion. STOBAG reserves the right to modify, rescind, vary, amend or add to any credit terms on 10 days prior written notice to the distributor.
3.04. The distributor undertakes that it will make all payments to STOBAG as and when such payments are due, without any right of setoff or deduction, and duly perform all its other legal obligations to STOBAG. When any payment by the distributor to STOBAG is in arrears, it will bear interest at an annual rate of 24% calculated and payable monthly, from the due date thereof to and including the date of payment. Distributor shall pay for the STOBAG products which it purchases from STOBAG in the lawful currency of the territory designated by STOBAG.
4. PAYMENT. In accordance with freight arrangements set out in section 5 and in accordance with INCOTERMS 2010 EXW or FCA, whichever applies to the STOBAG product order, STOBAG shall invoice distributor for the purchase price of the STOBAG 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 distributor to STOBAG at the times specified and in accordance with the invoice. The distributor shall provide any deposit(s) noted on the invoice on the dates noted therein and hereby acknowledges that all Swiss orders shall require a deposit of 50% of the Product price. All deposits are non-refundable. Any amount due pursuant to an invoice and not paid by the due date indicated shall bear interest at the rate of 24% 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. distributor agrees to pay any legal fees and costs incurred by STOBAG in the collection of any delinquent amounts due under any order. The distributor shall be responsible for all taxes arising out of or related to the provisions of STOBAG 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 governmental body, board or agency impose or increase any applicable sales, excise or other taxes, STOBAG reserves the right to increase prices to the distributor by an amount sufficient to cover such additional taxes. distributor’s order will be subject to STOBAG’s review of distributor’s credit worthiness as update from time to time.
5. FREIGHT. The distributor shall be responsible for all costs of shipping of the STOBAG products plus applicable taxes. If STOBAG products are made available at STOBAG’s premises, delivery terms shall be in accordance with INCOTERMS 2010 EXW. If the STOBAG products are delivered directly to the distributor, delivery terms shall be in accordance with INCOTERMS 2010 FCA. If distributor does not specify a transport company, STOBAG will select from its list of transport carriers. STOBAG will use its reasonable commercial efforts to make 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.
5.02.01 STOBAG may, in its sole discretion, without liability or penalty, make partial shipments of STOBAG products to distributor. Each shipment constitutes a separate sale, and distributor shall pay for the units shipped, whether the shipment is in whole or partial fulfilment of a purchase order. The distributor is solely responsible for all travel expenses to and from its customers, incurred by the distributor, even if extra travel is incurred due to short shipments by STOBAG.
5.02.02 At STOBAG’s sole discretion, freight may be prepaid by STOBAG with carrier of STOBAG’s choice and distributor shall promptly and fully reimburse STOBAG for such freight costs.
6. STORAGE CHARGES. STOBAG products delivered to a delivery point specified by the distributor or to STOBAG pursuant to an order must be picked up immediately. STOBAG products that are not picked up for 30 days after delivery will incur a storage charge of $20.00 per square foot /month plus applicable taxes retroactive to the date that the STOBAG product was available for pick-up.
7. RETURN OF STOBAG PRODUCTS. Returns for STOBAG’s products are not permitted without the consent of STOBAG, in its sole and absolute discretion pursuant to a Return Goods Authorization (the “RGA”) and subject to the following conditions: (i) the STOBAG product returned must be listed on the RGA, appear on the current price list, be returned in full in original packaging in a condition suitable for resale; (ii) All transportation charges for such return shall be prepaid by the distributor with the RGA number reflected on both the bill of lading and on each package, failing which, an $50.00 handling fee will be deducted from the credit; (iii) the item must be returned to STOBAG within 30 days from the date of issue of the RGA; and (iv) the credit for the returned STOBAG product will be calculated at the lowest price invoiced to the distributor for the STOBAG product in the preceding 365 days.
8. OWNERSHIP OF THE PRODUCTS. The distributor shall become the owner of STOBAG Products when: (i) the STOBAG product is made available to the distributor at STOBAG’s premises; or (ii) if the Product is arranged to be delivered directly to the distributor, when the shipment is placed aboard the carrier at STOBAG point of shipment. Accordingly, the distributor shall assume all risks in connection with the STOBAG products and said shipments from the time specified herein.
9. WARRANTY. STOBAG shall provide its warranty on STOBAG products to the first end user of the STOBAG products in accordance with the terms of the warranty set out in the most updated version of the warranty posted on the website (www.stobag.ca) on PartnerNet (Login details are assigned separately), which STOBAG is entitled to modify and amend from time to time on provision of prior written notice to the distributor. Ifa distributor performs services under the warranty, such services, including any travel expenses incurred with respect to the services, shall be at the sole cost and expense of the distributor and shall not be reimbursed by STOBAG unless otherwise specified in writing.
10. LIMITATION OF LIABILITY. Under no circumstances shall STOBAG be liable for any punitive, indirect, incidental, special or consequential damages, including but not limited to, damages for loss of earnings, profits, revenue, goodwill or use, incurred by a distributor, end user or any third party, whether in an action based upon equity, contract, tort, strict liability, or imposed by case law or statute, or otherwise, even if previously advised of the possibility of such damages.
STOBAG’s liability – whether based upon contract, tort, equity, negligence or any other legal concept – shall in no event exceed the value of a distributor’s order to which the damages are pertaining to, as described on the order form, or the order value for one (1) calendar year, whichever amount is lower. It is agreed and acknowledged that the provisions of these terms of sale allocate the risks between STOBAG and a distributor or end user in an equitable manner, that STOBAG’s pricing reflects this allocation of risk, and but for this allocation and limitation of liability, STOBAG would not have entered into this agreement.
In jurisdictions that limit the scope of or preclude limitations or exclusion of remedies or damages, or of liability, such as liability for gross negligence or willful misconduct or do not allow implied warranties to be excluded, the limitation or exclusion of warranties, remedies, damages or liability set forth above are intended to apply to the maximum extent permitted by applicable law. A distributor or end user may also have other rights that vary by state, country or other jurisdiction.
11. GOVERNING LAW AND JURISDICTION. These Terms of Sale are governed by the laws of the Province of Ontario and the federal laws of Canada which apply in Ontario. The United Nations Convention on the International Sale of Goods shall not apply to any sale of STOBAG products. The Courts of the Province of Ontario shall have exclusive jurisdiction for all disputes regarding these Terms of Sale. The parties waive their right to a trial by jury in any proceeding relating to these Terms of Sale.