Terms & Conditions

SRP CONTROL SYSTEMS LTD
TERMS AND CONDITIONS OF SALE

These standard terms and conditions of sale (the “Terms”) apply to all equipment, services, parts and materials supplied by SRP control systems ltd (herein after referred to as the “Seller”). The customer or buyer shall herein be referred to as the “Purchaser”. The Purchaser’s order submission and/or acceptance of goods and/or services supplied by the Seller shall constitute acceptance of these Terms.

General.

In the event of any conflict or inconsistency between the Terms and the terms and conditions contained in the Purchaser’s order or in any other form issued by the Purchaser, unless such terms and/or conditions have been explicitly accepted by the Seller in writing, the Seller’s Terms as set out herein shall prevail to the extent of the conflict or inconsistency. Except as explicitly accepted by the Seller in writing, fulfilment by the Seller of the Purchaser’s order does not constitute acceptance of any of the Purchaser’s terms and conditions and does not serve to modify or amend these Terms.

Except as set out below, the accompanying purchase order, quotation, confirmation of sale, invoice, or similar document, as applicable (the “Sales Confirmation”) and these Terms (collectively, the “Agreement”) comprise the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.

Electronic Transactions.

In the event that the Purchaser’s order(s) and/or quotations and/or communications for or relating to goods and/or services from the Seller is obtained from or placed through the Seller’s website at [www.srpcontrol.com] (the “Website”), the Purchaser accepts and confirms that the Seller’s Website Terms and Privacy Policy as provided on the Website (both of which may be amended from time to time at the Seller’s sole discretion and without any prior notice to the Purchaser) also constitute part of the Agreement.

Quotations.

Unless otherwise stated, the Seller’s quotation shall be null and void unless accepted in writing by the Purchaser within thirty (30) days from the date of quotation or as stated otherwise in such quotation. Minimum billing per order is $250 before applicable taxes, or otherwise stated. Prices are subject to change without notice. F.O.B. or C.I.F. is Mississauga, Ontario or otherwise stated. Prices are exclusive of taxes, shipping charges, fees, etc.

Taxes.

Any harmonized sales tax, goods and services tax, sales tax, excise taxes, and any other similar taxes, duties and charges of any kind imposed by any applicable governmental authority on any amounts payable by the Purchaser pursuant to the Purchaser’s order shall be collected by the Seller, unless the Purchaser provides evidence of an applicable tax exception.

Drop Shipments.

The Purchaser shall make payment in full at the time of order for any drop shipments which will be shipped directly to the Purchaser from a third-party manufacturer.

Payment Terms.

Excluding any drop shipments and subject to any pre-approved credit by the Seller, Purchaser shall pay all invoiced amounts due to the Seller net 30 days from the date of the Seller’s invoice, unless otherwise stated in the invoice by the Seller. The Seller specifically reserves the right, in its sole discretion, to modify the payment terms provided herein if, in its opinion, the payment record or financial condition of the Purchaser so warrants.

The Purchaser shall make all payments hereunder by cheque, wire transfer, credit card, or e-transfer and in Canadian dollars, unless otherwise stated in US dollars. All NSF cheques are subject to a $200 fee.
At this time, there is no additional charge to use a credit card for payment, but this will be subject to change without notice in the Seller’s sole discretion.

Late payments by the Purchaser shall be subject to a charge of eighteen percent (18%) per annum or the highest rate permissible under applicable law, calculated daily and compounded monthly. The Purchaser shall also reimburse the Seller for all costs of collection of any late payment, including, without limitation, legal fees.

Purchaser shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with the Seller, whether relating to the Seller’s breach, bankruptcy or otherwise.

The Seller reserves the right, in its sole discretion, to suspend or cancel shipment of a Purchaser’s order, or any part thereof, in the event that the Seller has not received payment in full of all invoiced amounts due and payable for such order.

Clerical Errors.

The Seller reserves the right, in its sole discretion, to correct clerical errors or omissions in any document provided by the Seller to the Purchaser, including, but not limited to, quotations and invoices.

Delivery.

Shipping and delivery schedules are approximate only and cannot be guaranteed. They are provided to the Purchaser based on prevailing market conditions, applicable respectively at the time of the Seller’s quotation and the Seller’s acceptance of Purchaser’s order. The Seller is not liable any delays in shipment and/or delivery and any such delays do not constitute a cause for cancellation by the Purchaser. Delivery shall also depend on the prompt receipt by the Seller of the necessary information to allow maintenance of the manufacturer’s engineering, parts availability and manufacturing schedules. The Seller may extend delivery schedules or may, at its option, cancel Purchaser’s order in full or in part without liability other than to return any deposit or prepayment which is unearned by reason of the cancellation. Shipments and deliveries shall be subject to approval of the Seller’s Credit Department.

Packaging & Shipping.

All products are inspected in conformance with the Seller’s established procedures and specifications based on the predetermined agreement. Products are packaged and shipped with the Purchaser’s specified courier and at the Purchaser’s risk and liability.

Transportation.

Shipments made F.O.B. or C.I.F. from Mississauga, Ontario shall be at the risk of the Purchaser who shall make all claims to the carrier in the event of damage to shipped material or losses in transit. Customer shall notify the Seller in writing relative to any shortage within ten (10) business days from receipt of shipment. It shall be presumed that the Product arrived in good condition, without shortages, unless timely notice is given.

Rush Shipments.

If requested by the Purchaser and permitted by the applicable third-party manufacturer and the Seller, a rush surcharge will apply dependant on the specific item (based on quantity, weight, rush build charge or overnight shipping) to the Seller’s facility in Mississauga, Ontario. The Purchaser agrees to pay to the Seller all such applicable surcharges.

Title and Risk of Loss.

Title and risk of loss passes to the Purchaser upon the delivery of the goods to the shipping courier. As collateral security for the payment of the purchase price of such goods, the Purchaser hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of the Purchaser in, to and under such goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Ontario Personal Property Security Act.

Changes.

Orders received and accepted by the Seller may not be changed or cancelled by the Purchaser without prior approval by the Seller, in its sole discretion. Changes or cancellations of products considered “made-to-order” including orders for good specifically built or manufactured to Purchaser’s specifications, will not be accepted without full reimbursement of all related expenses incurred to date by the Seller. Any extra costs associated with changes in or additions to the scope of work which are initiated by the Purchaser (and accepted by the Seller) or by circumstances beyond the Seller’s control shall be the Purchaser’s responsibility.

Cancellation, Suspension or Delay.

In the event that the Purchaser requests a cancellation, suspension, or delay, the Purchaser shall pay all appropriate charges, including but not limited to any cost, expenses and commitments incurred by the Seller up to the date of receipt of notice including any restocking fees. If the product was built to specification, there is a 100% non-return policy.

If for whatever reason the Purchaser is unable to accept delivery of a product at the time when the product is due and ready to be delivered, the Seller shall in its absolute discretion be entitled to: (a) treat the Agreement as having been materially breached by the Purchaser and the Seller shall have the right to terminate the Agreement, effective immediately; or (b) store the product(s), at the Purchaser’s sole cost and expense, for up to two (2) weeks as confirmed by the Seller in writing.

If the Seller elects to store the product(s), the Purchaser shall be liable to pay the Seller a reasonable sum for such storage and to reimburse the Seller for any insurance premiums expended by the Seller in respect of the products stored, but the Seller shall not be liable to the customer for any loss of or damage to the products while in storage. If the Purchaser is still unable to accept delivery at the end of the agreed upon storage period, the Seller shall in its absolute discretion be entitled to treat the Purchaser as being in material breach of this Agreement and the Seller shall have the right to terminate the Agreement, effective immediately.

Delivery Inspection & Claims.

Purchaser shall notify the Seller of any missing, damaged or defective products within ten (10) business days of delivery of such products. Failure to notify the Seller in writing within such period shall be deemed to be an acceptance of the received product(s) and an unqualified waiver of any rights by the Purchaser.

If the Purchaser timely notifies the Seller within the foregoing specified time period of any missing, damaged or defective goods (each, a “Non-Conforming Good“) received, the Seller shall, in its sole discretion, (a) replace each Non-Conforming Good with conforming goods, or (b) repair each Non-Conforming Good. The Purchaser shall ship, at its expense and risk of loss, the Non-Conforming Good(s) to the Seller’s facility as directed by the Seller in writing. If the Seller exercises its option to replace the Non-Conforming Good(s), the Seller shall, after receiving Purchaser’s shipment of Non-Conforming Good(s) ship to the Purchaser, at the Purchaser’s expense and risk of loss, the replaced good(s) to the Purchaser’s shipping address. The Purchaser acknowledges and agrees that the foregoing remedies are the Purchaser’s exclusive remedies for the delivery of Non-Conforming Goods.

Product Returns.

No product sold hereunder shall be returned to the Seller without the Seller’s prior written authorization and Return Material Authorization (RMA) number. If a return is approved by the Seller in its sole discretion, the return shall be subject to a restocking charge of a minimum of 35% of the sale price and must be shipped back to the Seller, freight prepaid. The Seller shall be under no liability in respect of any defect arising from wear and tear, or any wilful damage, negligence, subjection to normal conditions. Dependent on the manufacturer, if the product was built to specification, there is a 100% non-returnable policy.

Warranties.

All products sold by the Seller are manufactured by companies other than the Seller. ALL PRODUCTS SOLD BY THE SELLER ARE PROVIDED “AS IS” AND THE SELLER MAKES NO REPRESENTATIONS, CONDITIONS, OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCTS SOLD BY THE SELLER, INCLUDING ANY (A) CONDITION OR WARRANTY OF MERCHANTABILITY; (B) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) CONDITION OR WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

The Seller extends the manufacturer’s warranty given to the Seller by the manufacturer of the third-party product, if applicable. The Seller can provide a copy of any such applicable manufacturer’s warranty upon written request by the Purchaser. Claims under any manufacturer’s warranty must be made in accordance with the manufacturer’s requirements regarding the return, repair or replacement of the applicable third-party product. The Seller agrees to use reasonable efforts to cooperate with the Purchaser in processing any such claims, subject to the Seller’s receipt of payment by the Purchaser of any repair costs that are applicable to any such claims.

NOTWITHSTANDING THE FOREGOING, THE PURCHASER ACKNOWLEDGES AND AGREES THAT THE SELLER SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY BREACH OF WARRANTY OR CONDITION CLAIMS OR FOR ANY DAMAGES ARISING OUT OF THE MANUFACTURER’S FAILURE TO HONOURS ITS WARRANTY OBLIGATIONS.

Indemnification.

The Seller agrees to indemnify, defend and save the Purchaser, its officers, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses for the injury to or death of persons or damage to property to the extent caused by: (a) the negligence or willful misconduct of the Seller, its employees, agents or representatives or contractors in connection with the performance of services, if any, at the Purchaser’s premises under this Agreement; and (b) the use by the Purchaser of the product(s) purchased from or through the Seller in an application or environment strictly in accordance with the third-party manufacturer’s specifications. The Purchaser shall provide the Seller with prompt written notice of any third-party claim covered by the Seller’s indemnity hereunder.

Limitation of Liability.

(a) IN NO EVENT SHALL THE SELLER BE LIABLE TO THE PURCHASER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR AGGRAVATED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THESE TERMS, REGARDLESS OF (I) WHETHER SUCH DAMAGES WERE FORESEEABLE, (II) WHETHER OR NOT THE SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (III) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

(b) THE SELLER’S SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND THE PURCHASER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AGGREGATE AMOUNTS PAID BY THE PURCHASER TO THE SELLER FOR THE PRODUCTS AND/OR SERVICES THE PURCHASER HAS ORDERED FROM THE SELLER AND UPON WHICH THE CLAIM IS BASED.

Force Majeure.

The Seller shall not be liable for any loss or damage incurred by Purchaser herein, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any obligations set out in these Terms resulting from causes beyond the reasonable control of the Seller including, but without limitation, acts of God, epidemics, pandemics, war, invasion, insurrection, riot, the order of any civil or military authority, fire, flood, weather, acts of the elements, delays in transportation, unavailability of equipment or materials, breakdown, sabotage, lock-outs, strikes or labour disputes, or the failure of the Seller’s suppliers to meet their delivery promises. The acceptance of delivery of the goods and/or services by Purchaser shall constitute a waiver of all claims for loss or damage due to any delay whatsoever.

Installation.

All goods shall be installed by and at the risk and expense of Purchaser. Manuals and documentation are supplied by the applicable third-party manufacturer and not by the Seller.

Proprietary Information.

All information provided from the Seller, including without limitation, quotes and order information, is submitted solely for the Purchaser’s consideration and shall not be disclosed to any third party without the Seller’s prior written consent.

Confidentiality.

The Purchaser hereby agrees not to directly or indirectly use for any purpose, copy, or disclose to any third party any of SRP’s customer lists, customers records, trade secrets, price lists, business records, confidential documents or any other confidential and proprietary information.

Governing Law.

All matters arising out of or relating these Terms are governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule (whether of the Province of Ontario or any other jurisdiction).

Dispute Resolution.

In the event of any dispute arising under this Agreement, the Seller and Purchaser agree to resolve all disputes by the following alternate dispute resolution process: (a) the parties will first seek a fair and prompt negotiated resolution provided that at any time either party may refer any dispute to arbitration in accordance with the terms of this Section, and (b) all disputes shall be resolved by binding arbitration. All arbitration proceedings shall be conducted in accordance with the ADR Chambers Arbitration Rules. Arbitration shall be by a single arbitrator experienced in the matters at issue and mutually selected by the parties hereto or, failing such agreement, as determined by a Justice of the Superior Court of Justice of Ontario in an application for such appointment brought by any party hereto. The arbitration shall be held in the City of Mississauga, Ontario or any place agreed to by the parties hereto. The decision of the arbitrator shall be final and binding as to any matters submitted under this Agreement provided, however, if necessary, such decision and satisfaction procedure may be enforced by any party hereto in any court of record having jurisdiction over the subject matter or over either party to this Agreement. All costs and expenses incurred in connection with any such arbitration proceeding (including reasonable legal fees) shall be borne by the party against which the decision is rendered, or, if no decision is rendered, such costs and expenses shall be borne equally by the parties to the dispute. If the arbitrator’s decision is a compromise, the determination of which party or parties bears the costs and expenses incurred in connection with any such arbitration proceeding shall be made by the arbitrator on the basis of the arbitrator’s assessment of the relative merits of the parties’ positions.

Termination.

In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Purchaser, if Purchaser: (a) fails to pay any amount when due under this Agreement and such failure continues for five (5) business days after Purchaser’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, liquidation, reorganization or assignment for the benefit of creditors.

Assignment.

The Purchaser shall not assign any of its rights or delegate any of its obligations under these Terms without the Seller’s prior written consent. Any purported assignment or delegation in violation of this provision is null and void.
No Waivers. The failure and delay by the Seller to exercise or enforce any right or provision of these Terms does not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by the Seller.

No Third-Party Beneficiaries.

These Terms do not and are not intended to confer any rights or remedies upon any person or entity other than the Purchaser and the Seller and their respective successors and permitted assigns.

Severability.

If any provision of these Terms is invalid, illegal, void, or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity and enforceability of the remaining provisions of these Terms.