General Terms and Conditions of Sale
Van Essen Instruments - Canada
Article 1: Sales Agreements
1.1 The sale of products and services by Van Essen Instruments B.V. – Canadian Division (“Van Essen”) is governed by these terms and conditions (“Terms and Conditions”). Van Essen’s offer to sell products and services to the buyer (“Buyer”) is expressly limited by Buyer’s acceptance of these Terms and Conditions, as evidenced by Buyer’s issuance of an order for product(s) and/or services, or Buyer’s acceptance of any product and/or services under an order, or Buyer’s payment for any product and/or services under an order. These Terms and Conditions apply to the exclusion of any other terms that Buyer seeks to impose or incorporate or which are implied by trade, custom, practice or course of dealing. Terms, if any, included on any order, acknowledgment forms or other documents issued by or on behalf of Buyer shall not apply and are hereby voided, except to the extent that any such terms are expressly agreed to in writing by Van Essen. These Terms and Conditions shall apply to all sales of products and services by Van Essen and may only be modified or amended in a writing executed by an authorized officer of Van Essen.
1.2 These Terms and Conditions are subject to change without prior written notice at any time at Van Essen’s sole discretion, provided that any such changes shall not apply to any pre-existing orders.
1.3 Any offer by Van Essen to sell products and supply services must be in writing to be valid, and such offer shall be valid for thirty (30) days from its date of issuance, unless otherwise set forth in such offer. Such offer shall be deemed accepted only upon Van Essen’s receipt of Buyer’s written acceptance of such offer, provided that such acceptance is in accordance with Van Essen’s offer and these Terms and Conditions, unless otherwise accepted by Van Essen in writing.
1.4 No order for product(s) and/or services shall be binding on Van Essen unless and until it has been accepted in writing by Van Essen.
1.5 Van Essen shall not be liable for any errors or miscalculations in Buyer’s orders.
1.6 Buyer may not cancel any order without Van Essen’s prior written approval, such approval at Van Essen’s sole discretion. In the event Van Essen expressly agrees in writing to permit Buyer to cancel an order, Buyer will compensate Van Essen for all costs and losses attributable to the cancellation. Subject to the warranty set forth in Section 8, products purchased under these Terms and Conditions are not returnable or refundable. Products (from the catalogue) that are standard, undamaged and unused by Buyer may only be returned for credit provided that: (i) Van Essen authorises such a return in writing; and (ii) such products are returned in their original condition within three (3) months of the original delivery date with freight on such products prepaid. Van Essen reserves the right to inspect the returned products at its premises, prior to accepting the return. A restocking charge of twenty-five percent (25%) of the list price of the returned products shall apply to any such return. Non-standard or customized products cannot be returned.
Article 2: Price and Payment
2.1 The fees to be paid by Buyer to Van Essen for the products and/or services to be supplied under an order shall be as set forth in such order. Unless otherwise agreed, all prices for products exclude (and Buyer shall be solely responsible for) air freight packaging, costs of loading, shipping, delivery, insurance, installation and commissioning. Prices do not include any fees, taxes or duties relating to the shipment and delivery of any of the products, including without limitations value-added tax (VAT), duty, import and export tariffs and other forms of taxes and excise duties in the Netherlands, Canada and/or the recipient country.
2.2 If the currency fixed in an order is devalued, such that the rate of exchange between the currency chosen and Pounds Sterling varies by more than two percent (2%) as from the date of Van Essen’s offer, Van Essen may, at its sole discretion, suspend all performance under the order and notify Buyer of any price adjustment resulting from the devaluation. Buyer must then notify Van Essen in writing within eight (8) days of the date of Van Essen’s notification whether Buyer wishes to purchase the products and services at the adjusted price. If Buyer fails to notify Van Essen during such eight (8) day period, then Buyer’s order will be automatically cancelled. Van Essen shall not be liable for any costs or losses of Buyer attributable to such cancellation.
2.3 Unless the parties have agreed otherwise, payment of the price for the products and/or services to be supplied pursuant to an order shall be effected on the due date indicated on the invoice or in absence of such date specified, 30 days of the date of Van Essen’s invoice.
2.4 Buyer shall not be entitled to exercise any set-off, lien or any other similar right or claim against any amounts due to Van Essen for any reason.
2.5 If Buyer fails to effect payment within the agreed period, it shall be deemed to be in default by operation of law and Buyer shall have the right, without any notice of default being required, to charge Buyer interest of 4% per annum above Barclay’s base rate from time to time in force in the United Kingdom accruing from the date the payment was due until such payment thereof in full together with such interest as well as all judicial and extrajudicial costs relating to the collection of the amount owed.
Article 3: Delivery
3.1 The estimated date of delivery of products shall be stated in Van Essen's initial offer to sell products to Buyer and Van Essen will use commercially reasonable efforts to deliver the products within the estimated time to the extent possible. Delivery dates are estimates only and the time of delivery is not of the essence.
Van Essen does not guarantee delivery of products on or by any estimated delivery date. In no event shall Van Essen be liable to Buyer for any costs, fees, penalties or price reductions as a result of any failure to deliver products in accordance with any estimated delivery dates.
3.2 Partial deliveries by Van Essen are permitted unless otherwise agreed upon in writing by the parties.
3.3 Delivery shall be made Ex Works (EXW Incoterms 2010), Van Essen’s premises. Unless otherwise agreed upon by the parties in writing, Buyer shall arrange for transportation and transport insurance. If Buyer fails to arrange for transportation, Van Essen will choose a method of transportation that it deems appropriate. In all cases Buyer is responsible for all expenses involved in the shipment and delivery of products or rental equipment, if applicable, (including without limitation loading, freight, shipping, insurance, forwarding and handling charges).
Article 4: Transfer of Title
4.1 Title to products shall pass to Buyer as soon as the products have been placed with a transport agent.
Article 5: Drawings, Descriptive Documents, etc.
5.1 Van Essen reserves the right to alter measurements and dimensions as well as the design and description of any products. All data included in catalogues, prospects, circulars, advertisements, illustrated matter and price lists are approximate and shall not be binding unless otherwise agreed upon in writing by the parties. Drawings, descriptive documents, parts lists and other documentation (collectively, “Documentation”) provided or made available to Buyer by Van Essen are confidential information of Van Essen and may be used by Buyer only in connection with the use of the products. Buyer may not copy Documentation or disclose Documentation to any third party.
Article 6: Use of Van Essen's Products
6.1 Buyer acknowledges and agrees that the products must be used in accordance with all instruction provided by Van Essen and, where stated, products must be operated only by personnel who have received the appropriate training. Any Van Essen products that are to be connected to an electricity supply must be operated only by appropriately trained and qualified personnel, and must not be made available to any personnel without the proper training and qualifications.
Article 7: Rights and Software.
7.1 Buyer shall not copy Van Essen’s software or any related documentation, other than as is necessary for back-up copies. Buyer shall not assign or license any rights in the software to any third party. Van Essen grants to Buyer a limited, non-exclusive license to use the software provided with the products solely for the purpose of operating the products in accordance with Van Essen’s written documentation.
7.2 Notwithstanding that title to the products may pass to Buyer, Van Essen shall remain the exclusive owner of all intellectual property rights of whatever nature including, without limitation, copyrights, patents and patentable inventions, know-how, trade secrets, trademarks and design rights (whether registered, registrable or otherwise) embodied in or otherwise relating to the products (including any software contained therein). Other than as permitted by applicable law, Buyer shall not reverse engineer the products or any part thereof. Buyer shall not remove any proprietary notices and/or branding contained in or otherwise affixed to the products.
Article 8: Warranty and Exclusive Recourse
8.1 Unless otherwise agreed in writing, for a period of twelve (12) months following the date of delivery, and subject to the other provisions of this Section 8, Van Essen warrants that all new products that are both (a) manufactured by Van Essen and (b) purchased directly from Van Essen (or an authorized distributor of Van Essen) shall be free of material defects in materials and workmanship. Buyer’s sole and exclusive remedy, and Van Essen’s sole and exclusive obligation, in the event of any failure of products to comply with this warranty shall be for Van Essen to, at its option, repair or replace such products free of charge. In no event shall Van Essen be liable for ordinary wear and tear.
8.2 Van Essen does not provide any warranty for third party parts, components or products that are not manufactured by Van Essen. Such parts, components or products may be warranted by third parties on a “pass through” basis.
8.3 Van Essen does not warrant the accuracy, correctness or completeness of data which Buyer obtains on the basis of or in relation to the products and/or services delivered. Buyer shall interpret and/or use such data entirely at its own responsibility and shall indemnify Van Essen against claims, losses or obligations arising in connection with the interpretation and/or use of the data.
8.4 The foregoing remedies shall not apply to any product failure, defect or non-conformance caused in whole or in part by (i) Buyer’s failure to operate, maintain or service the products in accordance with Van Essen’s Documentation or (if there is none) good trade practice regarding the same, (ii) any alteration, modification or repair made to the products other than by Van Essen, (iii) use of the products for a purpose other than that for which they are intended, (iv) Van Essen following any drawing, design or specification supplied by Buyer, or using any materials and items supplied by or on behalf of Buyer; (v) fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions, (vi) the products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or (vii) circumstances not attributable to Van Essen (such as condition of the soil or well). Van Essen shall not be liable for products’ failure to comply with the warranty set out in this Section 8 if Buyer makes any further use of such products after giving notice in accordance with this Section 8.
8.5 In order to get the benefit of the foregoing warranty, Buyer must immediately inspect the products upon receipt and notify Van Essen in writing immediately after discovering any defect or shortcoming. Buyer shall not ship products back to Van Essen for any reason without Van Essen’s prior written consent, evidenced by a valid return material authorization (“RMA”). No returns will be permitted without a valid RMA. Any products returned to Van Essen must be received by Van Essen within 10 days of Buyer’s receipt of an RMA. Notwithstanding the issuance of an RMA, Van Essen reserves the right to inspect the products at its facility and to refuse, at its sole discretion, to accept the return of any item if Van Essen determines that the products’ warranty is not applicable for the reasons set forth above. Any defective products or parts forwarded by Buyer to Van Essen for repair or replacement, shall be carriage paid and at Buyer's risk. Buyer must clearly indicate the nature of the defect or shortcoming. If Van Essen replaces parts/products in fulfilment of its warranty obligations, the replaced parts/products shall become the property of Van Essen.
8.6 The remedy obligations of this Section 8 shall apply to any replacement products or parts only for the same duration of time as for the replaced products or parts.
8.7 THE FOREGOING EXPRESS WARRANTIES ARE THE EXCLUSIVE TERMS AVAILABLE TO BUYER AND EXTEND ONLY TO THE ORIGINAL CUSTOMER OF VAN ESSEN OR VAN ESSEN’S AUTHORIZED DISTRIBUTOR, AS THE CASE MAY BE. THE CORRECTION OF ANY DEFECT IN OR FAILURE OF PRODUCTS BY REPAIR OR REPLACEMENT IN ACCORDANCE WITH VAN ESSEN’S POLICIES AS DESCRIBED HEREIN SHALL BE VAN ESSEN’S SOLE AND EXCLUSIVE OBLIGATION AND THE SOLE AND EXCLUSIVE REMEDY OF BUYER FOR ANY AND ALL LOSSES, DELAYS OR DAMAGES RESULTING FROM THE PURCHASE OR USE OF VAN ESSEN’S PRODUCTS. OTHER THAN THE LIMITED WARRANTY SPECIFICALLY STATED HEREIN, VAN ESSEN, TO THE EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES WITH RESPECT TO VAN ESSEN’S PRODUCTS, INCLUDING THE PERFORMANCE THEREOF AND ANY SERVICES PROVIDED TO BUYER, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE.
Article 9: Limitation of Liability
9.1 To the extent permitted by law, Van Essen shall not be liable under any contract, tort, strict liability, negligence or other legal or equitable claim or theory for any special, incidental, consequential or indirect damages or for loss of goodwill or business profits, lost revenue, work stoppage (production or business interruptions or standstills), computer failure or malfunction, or for any and all other exemplary or punitive damages arising hereunder or from the use of products, including, without limitation, any such loss or damage relating to personal injury or property damage, even if Van Essen has been advised or was aware of the possibility of such loss or damages. In no event shall Van Essen’s total aggregate liability for any and all damages, losses or liabilities arising hereunder or from the supply of products and/or services exceed the amounts actually received by Van Essen from Buyer with respect to such products and/or services giving rise to the liability. Buyer shall indemnify Van Essen for any liability arising from Buyer’s (including its employees’ and agents’) and any subsequent owner's use of the products sold (directly or indirectly) by Van Essen.
Article 10: Confidentiality
10.1 Confidential Information means any and all information disclosed by Van Essen to Buyer or its representatives (“Receiving Party”), including information relating to the matters which are the subject of these Terms and Conditions, the existence and nature of these Terms and Conditions, and all other information regarding Van Essen’s past, present or future research, technology, know-how, ideas, concepts, designs, products, markets, computer programs, prototypes, processes, machines, manufacture, compositions of matter, business plans and operations, technical information, drawings, specifications, and the like, except information which is: (a) at the time of disclosure, or thereafter becomes, a part of the public domain through no act or omission by Receiving Party or its representatives; (b) lawfully in the possession of Receiving Party prior to disclosure by or on behalf of Van Essen as shown by Receiving Party’s written records; (c) lawfully disclosed to Receiving Party by a third party which did not acquire the same under an obligation of confidentiality from or through Van Essen as shown by written records; or (d) independently developed by Receiving Party without use of Van Essen’s Confidential Information as shown by Receiving Party’s written records.
10.2 Receiving Party shall not, without the prior consent of Van Essen, disclose any of the Confidential Information to anyone for any reason at any time or use any of the Confidential Information for any purpose except as requested by Van Essen. If Receiving Party believes in good faith that it is required by the law of any relevant jurisdiction or pursuant to an order of a court of competent jurisdiction or that of a competent regulatory authority to disclose any of the Confidential Information, it shall provide notice to Van Essen prior to making such disclosure so as to allow Van Essen time to undertake legal or other action to prevent such disclosure or otherwise obtain confidential treatment of such disclosure. In no event will Receiving Party disclose any of the Confidential Information that Receiving Party is not compelled to disclose by law, and Receiving Party will exercise reasonable efforts to obtain assurance that confidential treatment will be accorded to any of the Confidential Information so disclosed.
10.3 Receiving Party shall limit dissemination of the Confidential Information to only those of Receiving Party having a “need to know”, and advise each such person who receives the Confidential Information that such information is confidential and require each such person (other than attorneys and other agents who are already under a professional duty of confidentiality) to sign and comply with a written agreement obligating it/he/she to observe all of Receiving Party's obligations hereunder relating to confidentiality, non-disclosure and restrictions on use.
Article 11: Force Majeure
11.1 Van Essen shall not be liable for failure to perform or for delay in performance due to fire, flood, strike, or other labor difficulty, act of God, act of any governmental authority, riot, embargo, fuel or energy shortage, wrecks or delays in transportation, inability to obtain necessary labor, materials, or manufacturing facilities from usual sources, or due to any cause beyond Van Essen’s reasonable control. In the event of a delay in performance due to any such cause, the estimated date of delivery or time for completion of performance will be extended by a period of time reasonably necessary to overcome the effect of such delay. If Van Essen reasonably determines that any such delay in performance is likely to extend for a period of ninety (90) days or more, Van Essen shall have the right to cancel the applicable order upon notice to Buyer with no liability or further obligation to Buyer with respect to such order.
Article 12: Assignment & Subcontracting
12.1 Van Essen may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under these Terms and Conditions. Buyer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under these Terms and Conditions without the prior written consent of Van Essen.
Article 13: Severance
13.1 If any court or competent authority finds that any provision of these Terms and Conditions (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of these Terms and Conditions shall not be affected.
Article 14: Waiver
14.1 A waiver of any right or remedy under these Terms and Conditions is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under these Terms and Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
Article 15: Applicable Law
15.1 These Terms and Conditions and any dispute or claim arising hereunder shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, and the courts of Ontario shall have jurisdiction to entertain any action arising hereunder