SPORT SYSTEMS CANADA INC.
SELLER'S TERMS AND CONDITIONS
Unless Sport Systems otherwise expressly agrees in writing, these terms and conditions of sale apply to all quotations made and sales agreements entered into by Sport Systems Canada Inc. ("Sport Systems") for the sale of any Sport Systems product or equipment to a buyer (the "Buyer"). Acceptance of the Buyer's order is made only on the express understanding and condition that the order is governed by the terms and conditions set out herein and that insofar as these terms and conditions conflict with any terms and conditions of the Buyer's order, these terms and conditions shall govern. Any changes in the terms and conditions of sale contained herein must specifically be agreed to in writing by an authorized officer of Sport Systems before becoming binding on either Sport Systems or the Buyer. These terms and conditions of sale shall be applicable whether or not they are attached to or enclosed with the products sold or to be sold.
2. PRICES AND QUOTATION
Prices on the website are subject to change without notice. For actual prices in effect, Buyer should always check with a Sport Systems representative as to current prices. Where Sport Systems provides a written quotation, quoted prices for products are open for acceptance by the Buyer within the time period specified on the quotation. If no time period is specified, quoted product prices are open for acceptance within thirty (30) days from the date of quotation. Unless otherwise stated product prices are firm but subject to changes in foreign exchange, purchase or sales tax, customs tariff and other direct taxes, between date of quotation and date of shipment.
Buyer is responsible for all shipping charges, taxes, duties, storage, handling, insurance and other charges. Sport Systems may provide an estimate of shipping costs with a quotation. Any such estimate is an estimate only and Sport Systems is not responsible if actual shipping costs are higher than estimated or include extra charges. Shipping costs can be affected by numerous factors, including without limitation fuel surcharges, brokerage fees, duties, taxes and security fees. Buyer is responsible for costs borne out of any specialized shipping services that may be requested, which include but are not limited to tailgate delivery, private residential delivery, jobsite delivery, limited access delivery (schools, churches & military sites), redirected shipments and pre-delivery notifications.
All of the Buyer's orders are subject to final acceptance by Sport Systems, and Sport Systems reserves the right to accept or to reject any order from the Buyer, in whole or in part. Sport Systems reserves the right (without prejudice to any other remedy) to cancel any uncompleted order or to suspend delivery in the event of any act or omission of the Buyer which delays Sport Systems' performance and Sport Systems shall have no liability to the Buyer for any costs, losses or damages of any kind whatsoever arising as a result of such suspension or cancellation. On the cancellation of any order, the Buyer undertakes to indemnify Sport Systems against all losses, including cost of all labour, materials, overhead, damages, charges and expenses arising out of the order and its cancellation.
Products may be purchased by Buyer for resale to another third party customer. Buyer shall notify Sport Systems in advance if it is buying products for resale. Buyer shall be responsible for making the product available to, and providing all related services to, the end user. Sport Systems shall have no responsibility or liability to the third party end user whatsoever. The Buyer agrees that it has no authority to assume or create any obligation whatsoever, expressed or implied, in the name of Sport Systems, nor to bind Sport Systems in any manner whatsoever. The Buyer shall have no authority hereunder to enter into any contract of sale or for the return of merchandise or other contract on behalf of Sport Systems. The Buyer undertakes and agrees that it will not furnish to any customer or prospective customer, any warranties, undertakings or guarantees of any nature whatsoever which may tend to involve the responsibility or liability of Sport Systems. In the event that the Buyer does allow or furnish to customers or prospective customers, warranties, undertakings or guarantees of any nature whatsoever, which might tend to involve the responsibility or liability of Sport Systems then, in such event, the Buyer agrees to indemnify and save Sport Systems harmless from any claims, demands, damages, costs or losses whatsoever arising out of or in any way connected with such warranties, undertakings or guarantees.
5. RISK, DELIVERY AND TITLE
5.1 Unless Sport Systems has agreed to install products at the Buyer's or end user's premises in writing, Sport Systems' only responsibility shall be to deliver the products in good condition, properly packaged to the selected carrier. Liability for loss or damage in transit or thereafter shall pass to the Buyer upon Sport Systems' delivery of the goods in good condition to a common carrier at the facility of Sport Systems for shipment to the Buyer. Sport Systems is not responsible for any loss or damage to products which occurs while in transit. Products leave the shop in good condition and are packaged appropriately for the selected method of shipment. THE BUYER IS RESPONSIBLE FOR INSURANCE DURING SHIPPING AND FOR CHECKING ALL PRODUCTS IN A SHIPMENT THOROUGHLY UPON RECEIPT. ANY DAMAGE OR SHORTAGE CLAIMS MUST BE INDICATED ON THE WAYBILL AND ACKNOWLEDGED BY SIGNATURE OF SHIPPING COMPANY'S DRIVER. SPORT SYSTEMS MUST BE NOTIFIED OF ANY DAMAGES OR SHORTAGE WITHIN 5 BUSINESS DAYS OF DELIVERY. FAILURE TO NOTIFY SPORT SYSTEMS REGARDING DAMAGES OR SHORTAGES IN WRITING WITHIN THE SPECIFICED TIME PERIOD WAIVES BUYER'S RIGHT TO CLAIM FOR SAID DAMAGES OR SHORTAGES. BUYER IS TO RETAIN ALL PACKAGING MATERIALS DURING CLAIM PROCESS SO THAT SHIPPING COMPANY'S REPRESENTATIVE MAY INSPECT PRODUCT AND METHOD OF PACKAGING. BUYER IS TO RETAIN SIGNED WAYBILL FOR PURPOSES OF ANY SHIPPING CLAIMS.
5.2 Unless instructions from the Buyer specify the method of shipment to be used, Sport Systems will exercise its own discretion. Sport Systems will use reasonable commercial efforts to ship orders within the times quoted for shipments. Times quoted for shipment will date from receipt by Sport Systems of the Buyer's order accompanied by all necessary information, together with any import license and/or permits which may be necessary. In no event will Sport Systems be liable for any costs, losses or damages including without limitation re-procurement costs arising out of or caused by delay in delivery or for non-delivery.
5.3 Title in the products shall pass to Buyer upon payment in full therefor.
6.1 All taxes, levies or duties, of any nature, applicable to the goods sold shall be paid by the Buyer, or in lieu thereof, the Buyer shall provide Sport Systems with a tax exemption certificate acceptable to the taxing authorities.
6.2 The purchase price will be fully paid to Sport Systems by the Buyer, without deduction of any applicable taxes, import duties, sales use or privilege taxes or excise or withholding taxes, or other similar taxes or duties levied by any government upon the Buyer or Sport Systems as a result of the manufacture, sale, delivery or use of any goods sold or licensed hereunder.
7.1 All orders are subject to credit approval before acceptance. All invoices are due and payable as specified by Sport Systems. Sport Systems may in discretion require payment in advance, payment upon delivery or payment thirty (30) days from the invoice date. Unless otherwise specified, payment is due within thirty (30) days of the invoice date.
7.2 If, in Sport Systems' judgment, the Buyer's financial condition does not at any time justify the terms of payment specified, Sport Systems may cancel any unfilled orders unless the Buyer shall, upon written notice, immediately pay for any goods delivered or shall pay in advance for all goods ordered but not delivered or both, at Sport Systems' option. Each shipment shall be considered separate and independent transaction, and payment therefor shall be made accordingly. In the event of any default by the Buyer, Sport Systems may decline to make further shipments without in any way affecting its rights under such orders. If, despite any default by the Buyer, Sport Systems elects to continue to make shipments, its action shall not constitute a waiver of any default by the Buyer or in any way offset Sport Systems' legal remedies for any such default.
7.3 Interest shall accrue against any amount which remains unpaid by the Buyer under this Agreement for more that thirty (30) days from the date payment becomes due. Such interest shall be payable to Sport Systems at a rate of [1.5% per month compounded (19.6% per annum, actual rate)] and shall be payable monthly in arrears.
No products are to be returned without written authorization from Sport Systems and then only in accordance with Sport Systems' terms and instructions. Buyer is responsible for all costs of shipment for returns. Returned products must arrive at Sport Systems' facility in the same condition they were in when originally shipped by Sport Systems. A restocking charge applies to any returned product. Absolutely no returns will be authorized on product which has been installed or product which has been in storage for more than three months. Absolutely no returns will be authorized on product that is custom in nature.
Sport Systems makes every effort to ensure that its website and other printed material are kept up to date. However, written specifications are subject to change without notice.
10. INSTALLATION AND/OR ASSEMBLY
Unless Sport Systems has agreed expressly in writing to provide installation and/or assembly services, Buyer is responsible for installing and/or assembling products. Buyer assumes full responsibility for the proper installation and/or assembly of products.
11. INSTRUCTIONS AND WARNINGS
Sport Systems shall have no liability whatsoever for injury, damages, losses and expenses arising as a result of a failure to follow instructions from Sport Systems related to the proper installation, use, care and maintenance of products. Buyer should follow all such instructions, including without limitation:
SOCCER: GROUND STAKES SHOULD BE USED AT ALL TIMES WITH PORTABLE SOCCER GOALS TO PREVENT ACCIDENTAL TIP-OVERS. TIP OVERS CAN CAUSE SERIOUS INJURY OR DEATH.
PRODUCTS SHOULD BE INSPECTED PRIOR TO EACH USE FOR DAMAGE AND DETERIORATION AND SHOULD NOT BE USED IF DAMAGED OR DETERIORATED.
PRODUCTS SHOULD NOT BE USED BY PARTICIPANTS WITHOUT PROPER TRAINING AND SUPERVISION.
PRODUCTS SHOULD BE STORED INDOORS IN A DRY PLACE.
12. LIMITED WARRANTY AND DISCLAIMER
Sport Systems warrants that:
(a) services including installation services, if any, will be provided in a good and workmanlike manner;
(b) articles of its manufacture will be free of defective materials or workmanship for a period of time from date of shipment; and
(c) articles of its manufacture will conform to specifications agreed to in writing by the Buyer and Sport Systems.
The applicable time period for these warranties varies for each product and shall be as specified by Sport Systems. The liability of Sport Systems under this warranty is limited, at Sport Systems' option, solely to repair or replacement with equivalent articles, or an appropriate credit adjustment not to exceed the original sales price for articles returned to Sport Systems, and provided that (a) Sport Systems is promptly notified in writing by the Buyer, during the applicable warranty period, of any defect or nonconformance in the article; (b) the Buyer obtains authorization from Sport Systems to return the defective article; (c) the defective article is returned to Sport Systems, transportation charges prepaid; and (d) Sport Systems' examination of such article discloses to its satisfaction that any defect or nonconformance was not caused by: negligence; vandalism; misuse; improper installation, storage, care or maintenance; damage or loss in transit; accident, fire, Acts of God; or unauthorized repair or alteration by a person other than Sport Systems. Sport Systems will not be responsible for labour cost of removing an alleged defective product or shipping or installation of a replacement product.
Sport Systems makes no warranty with respect to any products it supplies that are manufactured by a third party. Sport Systems will make reasonable efforts to make the benefit of any warranty provided by the third party manufacturer to the Buyer, subject to the manufacturer's applicable terms and conditions.
SPORT SYSTEMS MAKES NO OTHER WARRANTIES, REPRESENTATION OR CONDITIONS WITH RESPECT TO ITS PRODUCTS OR SERVICES. THESE WARRANTIES ARE EXPRESSED IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND OF ALL OTHER OBLIGATIONS OR LIABILITIES ON SPORT SYSTEMS' PART. The aforementioned provisions do not extend the original warranty period of any article which has either been repaired or replaced by Sport Systems. THE FOREGOING CONSTITUTES THE BUYER'S SOLE AND EXCLUSIVE REMEDY FOR THE FURNISHING OF DEFECTIVE OR NONCONFORMING GOODS.
13. LIMITATION OF LIABILITY
Sport Systems' maximum liability in respect of articles supplied pursuant to a quotation or purchase order , whether for breach of contract, tort (including negligence) or otherwise, shall not in any event exceed the total contract price specified in the purchase order less the quotation or purchase price for any items delivered and accepted hereunder. IN NO EVENT SHALL SPORT SYSTEMS BE LIABLE TO ANYONE FOR SPECIAL, COLLATERAL, INDIRECT, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, COSTS OF REMOVAL AND REINSTALLATION OF GOODS LOSS OF GOODWILL, LOSS OF PROFITS, OR LOSS OF USE.
SPORT SYSTEMS SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGES, COSTS OR EXPENSES ARISING AS A RESULT OF BUYER'S INSTALLATION, USE, MISUSE AND HANDLING OF PRODUCTS AND BUYER HEREBY INDEMNIFIES SPORT SYSTEMS, AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL SUCH DAMAGES, LOSSES, COSTS AND EXPENSES.
14. PROPRIETARY RIGHTS
Sales by Sport Systems are of finished goods only. All design, manufacturing processes, manufacturing information, vendor sources, know-how, equipment, tooling or other hardware, software, or information acquired or utilized by Sport Systems are and shall hereinafter remain the exclusive property of Sport Systems, and the Buyer shall acquire or receive no rights or title therein or thereto as a result of the purchase whether or not the order provides for Sport Systems' delivery of technical data, drawings or other information to the Buyer in addition to the finished goods. Unless Sport Systems' prior written consent is given, in no event shall the Buyer permit such data, drawings or information to be: (1) disclosed to any third party other than the Buyer's customer; (2) used by the Buyer or the Buyer's customer for manufacture of like or similar goods; (3) used for purposes of duplicating or reverse-engineering Sport Systems' proprietary designs or processes; or (4) used by a party other than the Buyer or the Buyer's customer for any purpose.
The Buyer shall not assign his order or any interest therein or any rights thereunder without the prior written consent of Sport Systems.
This is the entire agreement between the parties and the rights and obligations arising thereunder Agreement shall be governed by the laws of the Province of Ontario and the laws of Canada applicable in Ontario. The parties expressly exclude the effect of all of the provisions of the Vienna Convention, 1980 (The United Nations Convention on Contracts for the International Sale of Goods), from the terms of this Agreement. The Buyer and Sport Systems agree that the Courts of Ontario shall have jurisdiction to entertain any action arising out of or in relation to this Agreement and that any matter shall be tried in the courts in Ottawa, ON.