NOTE: “Lead Time” references the estimated shipping date from the date of receipt by Quality Machine Protection Inc. of a Purchase Order, credit approval,
deposit, and/or written approval of a sample/drawing, whichever is latest. This quotation and order(s) arising from it are subject to the attached list of “TERMS AND CONDITIONS”. This quotation is valid for 30 days.
This Agreement contains the terms and conditions that apply to your purchase(s) from Quality Machine Protection Inc (“QMP”). By placing an order with QMP, you (the customer) agree to be bound by these terms and conditions unless you provide Quality Machine Protection Inc. written notice of non-acceptance within twenty-four hours after receiving this Agreement and an officer of QMP Inc.
1. Other Documents – This Agreement may NOT be supplemented or amended by the use of any other document(s).
Any attempt to supplement or amend this Agreement or to enter an order for product(s) or services that are subject to additional or altered terms and conditions will be null and void. QMP Inc. acceptance of an order which purports to be subject to additional or altered terms and conditions will not be construed as assent to those terms and conditions nor as a waiver of any of the terms and conditions of this Agreement.
2. Governing Law – This agreement and any sales there under are to be governed by the laws of the Province of Ontario.
3. Payment Terms – You must make payment to Quality Machine Protection Inc. in the amount set forth in the invoice(s). Terms of payment are within QMP’s sole discretion, and unless otherwise agreed to by QMP, payment in full must be received by QMP within thirty (30) days from the date QMP ships or otherwise delivers the Products. QMP may invoice parts of an order separately. QMP retains a purchase money security interest in the Products to secure any balance owing. Payment by Visa or MasterCard is accepted provided it is approved by QMP at the time a purchase order is received. There will be an additional surcharge of 4% added to the invoice.
4. A deposit of 50% is required on custom orders over $4000 with the balance due Net 30 days after shipping upon credit approval.
5. Interest -You agree to pay interest on all past-due sums at the rate of 1.5% per month (18% annually) from date of shipment and agree to pay all costs of collection incurred by QMP, including but not limited to court costs, attorney’s fees and collection agency fees. Failure to make payment in full on or before the due date will be deemed a material breach of this agreement and will be cause for the immediate termination of this agreement at QMP’s option. Failure to pay in full on or before the due date will void all warranties. You may not make changes to product design specifications, quantities, delivery dates, or other material aspects or the Order without QMP’s express written consent. QMP reserves the right to amend prices an amount equivalent to any changes or modifications requested by you.
6. All shipments will be F.O.B. QMP’s factory unless otherwise specified. Title and risk of loss passes to you on shipment from QMP’s facility.
7. All Products will be installed by you at your expense, unless otherwise agreed upon at time of purchase. Separate charges for shipping and handling will be shown on QMP’s invoice(s).
8. QMP is required to charge applicable provincial and federal tax on every item for which sales tax exemption certification has not been provided. If applicable, a separate charge for taxes will be shown on QMP’s invoice. If QMP is required to pay any such tax, fee or a charge at the time of sale or thereafter, QMP will invoice you and you will reimburse QMP therefore.
9. QMP Reliance on Information Provided by You. QMP will be entitled to rely on the accuracy and completeness of information furnished by you. You expressly acknowledge that QMP is not in the business or profession of supplying information for the guidance of others in their business transactions. QMP will not be liable for any problems caused by the inaccuracy or incompleteness of information furnished by you.
10. Proprietary Rights – QMP’s designs, specifications, documentation, inventions, prototypes, concepts, technologies and other information about its products or processes in whatever form (including that which may be embodied in products or services provided) is QMP’s proprietary property (“proprietary information”). All applicable rights to patents, copyrights, trademarks, trade secrets and other intellectual property rights associated with the proprietary information will be and will remain in QMP, regardless of whether such rights pertain to products developed for you. You agree to keep confidential proprietary information that is not in the public domain.
11. Limited Warranty. QMP warrants that, for a period of one (1) year from the date QMP ships or otherwise delivers the Products to you (the “Warranty Period”), the Products manufactured by QMP will be free of material defect in workmanship under normal use, provided that you notify QMP of the defect during the Warranty Period and within thirty (30) days from the date you discover or in the exercise of due diligence should have discovered the defect. If a Product manufactured by QMP is defective and notice has been given as provided above, QMP’s sole obligation under this warranty is to repair or replace, at QMP’s sole option, any components found after inspection by QMP to be defective. If QMP elects to replace a component, such replacement will not extend the life of this warranty. Regardless of when the replacement component was supplied, this limited warranty will end one (1) year from the date QMP first shipped or otherwise delivered the original Product. All warranty work must be done at QMP’s factory. You must return products to QMP with shipment prepaid for inspection and repair. QMP will not accept any charges for work performed by you or a third party unless QMP has authorized such work in writing. Your failure to pay the purchase price in full by the due date will void all warranties for such products. Steel way cover repairs are limited to 560 hours based on a 40 hour work week and new way covers are limited to 1120 hours based on a 40 hour work week.
12. Limitation of Liability. The warranty stated in Section 11 is a limited warranty and is the only warranty made by QMP. The limited remedies provided under these terms and conditions are enforceable notwithstanding and regardless of whether such limited remedies are deemed to fail in its essential purpose. QMP does not make and you expressly waive any other warranties express or implied, including without limitation all warranties of merchantability or fitness for a particular purpose. QMP will have no liability for lost profits or direct, consequential, exemplary, incidental or punitive damages even if it has been advised of the possibility of such damages. In any event the liability of QMP for any reason and upon any cause of action will be limited to (A) repair, (B) replacement or (C) refund of the amount of the purchase price previously paid to QMP by you for the specific products in question, as QMP will select in its sole discretion. QMP disclaims any liability for product defect claims that are due to improper installation, improper repair or maintenance by you or a third party, product misuse, improper product selection or misapplication. Components purchased by QMP from a third party carry only their standard manufacturer’s warranty. No action arising out of this agreement will be brought more than one year after such cause of action accrues. A cause of action for breach of this agreement accrues when the breach occurs whether or not you are aware of the breach at that time. This reduced statute of limitations period is established by mutual agreement of the parties.
13. Acceptance -Your retention of Products for 30 days after receipt constitutes irrevocable acceptance and a waiver of any right of action you may have for non-conformity unless you notify QMP of a specific non-conformity within that time
period. The failure by QMP to enforce at any time any of the provisions of this contract, or to exercise any election or option provided herein, will in no way be construed as a waiver of such provisions, options, or the right of QMP thereafter to enforce each and every provision.
14. Termination -QMP may terminate this Agreement upon five (5) days written notice to you upon: (A) violation or breach by you or your agents or employees of any provision of the Agreement; (B) the termination of your business; (C) your voluntary or involuntary filing of bankruptcy or similar proceeding; or (D) your becoming insolvent or making any assignment for the benefit of creditors.
15. Cancellation of Orders/Extension of Delivery Date. Products may not be returned without QMP’s written consent. Due to the special design of the products, orders cannot be canceled by you in whole or in part without the written consent of QMP. You cannot extend the delivery date more than three (3) months beyond the original delivery date without QMP’s written consent. If QMP consents to an extension or cancellation, you will be invoiced for the prorated price of the products representing all labor completed on the project, materials and purchases allocated to the project, any return/restocking costs, commitments made by QMP for purchased components and materials, and any other costs incurred. QMP is not required to attempt to resell the products.
16. Miscellaneous – Section headings are for convenience only and do not form a part of the terms and conditions. If a court deems any part of this Agreement invalid, the remaining provisions will remain in full force and effect. QMP will not be liable for delay resulting in whole or in part from Acts of God, labour disruptions, shortages, weather conditions, or any other circumstances beyond QMP’s control. The Province of Ontario, Region of Waterloo will have exclusive jurisdiction and venue over any dispute arising out of this Agreement and sale and you consent thereto.