TERMS AND CONDITIONS OF SALE ATLANTIC TUBE & STEEL INC. SERVICE CENTER
GENERAL: Any written or oral order received from a customer (“Customer”) by Atlantic Tube & Steel Inc. Ltd. or its affiliates (“Atlantic Tube & Steel Inc.”) for the supply of products (the “Products”) is governed by the standard terms and conditions of sale outlined below (the “Terms”), as such may be amended by Atlantic Tube & Steel Inc. from time to time. Atlantic Tube & Steel Inc. rejects any terms and conditions inconsistent with these Terms and rejects any other terms proposed by Customer in accepting Atlantic Tube & Steel Inc.’s proposal or quotation. No agreement, oral or written, in any way claiming to modify these Terms will be binding on Atlantic Tube & Steel Inc. unless agreed to in writing by an authorized representative of Atlantic Tube & Steel Inc..
QUOTATION: Any quotation given by Atlantic Tube & Steel Inc. to Customer shall not constitute an offer.
ACCEPTANCE OF ORDERS: Any order from Customer to Atlantic Tube & Steel Inc. for the supply of Products shall not be binding on Atlantic Tube & Steel Inc. until either accepted by Atlantic Tube & Steel Inc. in an order confirmation or fulfilled by delivery of the Products(s) identified in the order (an “Accepted Order”). Any sample provided by Atlantic Tube & Steel Inc. is not part of an Accepted Order.
DELIVERY: Any quoted delivery dates are estimate only. Atlantic Tube & Steel Inc. is not obliged to meet such dates and will not be liable to Customer by reason of delays caused by any reason whatsoever. Atlantic Tube & Steel Inc. shall be under no liability for direct or consequential loss or damage to Customer arising from delay or postponement of delivery.
INCOMPLETE ACCEPTED ORDER: Any portion of an Accepted Order which is not filled and shipped as a result of a lack of inventory or due to force majeure as described below, will nevertheless be retained as an Accepted Order and delivered as soon as possible; however, if Atlantic Tube & Steel Inc. notified Customer that such portion cannot be delivered at a later date, the Accepted Order for that portion will be cancelled and Atlantic Tube & Steel Inc. will not incur any liability whatsoever to Customer as a result thereof.
SHIPPING: Customer’s Accepted Order must contain complete shipping instructions. All fees, costs, duties and other charges connected with shipment, transportation, insurance and importation of the Products are the responsibility of Customer and if paid by Atlantic Tube & Steel Inc. shall be reimbursed by Customer to Atlantic Tube & Steel Inc..
NO CANCELLATION: Accepted Orders cannot be cancelled or modified, in whole or in part, without Atlantic Tube & Steel Inc.’s prior written consent. If Atlantic Tube & Steel Inc. agrees to alter or cancel an Accepted Order, Customer shall indemnify Atlantic Tube & Steel Inc. against any loss, damage and expense incurred by Atlantic Tube & Steel Inc. in relation to the cancellation or alteration of such order, including the cost of return freight, return shipping, items purchased from third parties for inclusion in the Products and all labor costs incurred by Atlantic Tube & Steel Inc. in the execution or part execution of the Products.
PRICE INCREASES: All prices are subject to change without prior notice at any time between our acceptance of an Accepted Order and the date delivery is completed by Atlantic Tube & Steel Inc. for any Product Atlantic Tube & Steel Inc. allocates to fulfill an Accepted Order.
TAXES: All prices are subject to all applicable sales and use taxes, excise taxes, customs, duties and tariffs and any other taxes, customs, duties and tariffs now or hereafter imposed and/or levied by any governmental authority with respect to the sale of the Product(s) (“Applicable Taxes”). Applicable Taxes will be added to the price Customer pays for the Products. Atlantic Tube & Steel Inc.’s failure to charge or collect Applicable Taxes when due shall not relieve Customer of its obligation for payment.
PAYMENT TERMS & CREDIT POLICY: Payment terms are set forth in the invoices issued by Atlantic Tube & Steel Inc. to Customer. If payment in full on any invoice is not received when due, or if Customer’s credit worthiness is deemed unsatisfactory by Atlantic Tube & Steel Inc. at any time, Atlantic Tube & Steel Inc. may take, without incurring any liability, one or more of the following actions: (a) impose a service charge at the rate that is the lesser of (i) 1.5% per month (18% on an annual basis) or (ii) the maximum rate allowed by applicable law, on any amount past due commencing from the date of such invoice, (b) modify or accelerate payment terms, and/or (c), withhold delivery of Product(s) under any Accepted Order not yet shipped and/or delay, recall or reclaim shipments of Product(s) enroute to you or delivered until arrangements satisfactory to Atlantic Tube & Steel Inc. are made to secure payment for any outstanding invoice and for all open Accepted Orders. Atlantic Tube & Steel Inc. will set and review Customer’s credit limit and terms at its discretion from time to time.
ACCEPTANCE OF PRODUCT(S): Customer is responsible for promptly inspecting Product(s) delivered and notify Atlantic Tube & Steel Inc. within five (5) calendar days following receipt of the Product(s) for which a claim is filed of any non-conformance of the Product(s). If Customer fails to notify Atlantic Tube & Steel Inc. within five (5) calendar days following receipt of the Product(s), Customer shall be deemed to have accepted the Product(s). Customer acknowledges and agrees that any shipment of Product(s) varying by up to 10% from the quantity and/or weight specified in the Accepted Order, shall be deemed to have fulfilled the quantity and/or weight in the Accepted Order.
TITLE AND RISK: Unless expressly agreed to in writing by Atlantic Tube & Steel Inc., all sales are made on an F.O.B. destination basis and the risk of loss of, or damage to, the Product(s) is assumed by Customer upon arrival of the Product(s) at the point of delivery. Notwithstanding the foregoing, any Product(s) described in an invoice or in an Accepted Order is and will remain the property of Atlantic Tube & Steel Inc. until they are paid for in full. The reference to F.O.B. shall have the same meaning as that ascribed to it by the International Chamber of Commerce in its current edition of Incoterms.
RETURNS: Product(s) may not be returned for credit without Atlantic Tube & Steel Inc.’s prior written approval. Atlantic Tube & Steel Inc.’s approval can be withheld at its sole discretion or Atlantic Tube & Steel Inc. can impose terms and conditions for such approval, including, but not limited to, the imposition of restocking charges.
LIMITED WARRANTY: Atlantic Tube & Steel Inc. warrants that the Product(s) sold are in conformance with the specifications set out in the order confirmation of the Accepted Order (“Limited Warranty”), subject to the permitted defects set out in Section 15 below. THIS LIMITED WARRANTY IS IN LIEU OF ALL WARRANTIES, EXPRESSED OR IMPLIED. WE MAKE NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR USE, OR OF CONFORMANCE OF ANY PRODUCT(S) WITH ANY SAMPLE. PRODUCT(S) SOLD BUT NOT MANUFACTURED BY ATLANTIC TUBE & STEEL INC. ARE NOT WARRANTIED BY ATLANTIC TUBE & STEEL INC., BUT ARE SOLD ONLY WITH THOSE WARRANTIES PROVIDED BY THE MANUFACTURER. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
WARRANTY CLAIMS: If Customer seeks to file a claim in respect of the Product(s), Customer must provide written notice to Atlantic Tube & Steel Inc. and such claim shall comply with the procedures and timelines set out in Atlantic Tube & Steel Inc.’s Claim Policy (www.atlantictube.com) as may be amended from time to time, and which is incorporated by reference into and shall form part of these Terms. In the event of any inconsistency or conflict between these Terms and the Claim Policy, these Terms shall take precedence. Customer’s failure to comply with the Claim Policy shall be sufficient grounds for Atlantic Tube & Steel Inc. to deny any claim.
FORCE MAJEURE: If Atlantic Tube & Steel Inc.’s performance of any obligation is delayed due to unavailability of Product(s) or any other cause beyond Atlantic Tube & Steel Inc.’s reasonable control by reason of fire, strike, lock-out, labour trouble, war, epidemic, embargo, flood, delay in transportation, lack of critical materials, lack of unavailability of trailers and/or railway cars, failure of carriers or sub-trades, shortage of manpower, restrictive governmental laws or regulations (including any trade actions, export controls, tariffs, customs or duties) or to any other cause or reason beyond Atlantic Tube & Steel Inc.’s commercially reasonable control (a “Force Majeure”), notwithstanding that such Force Majeure may have existed at the time of submission or acceptance of an Accepted Order, Atlantic Tube & Steel Inc. shall not be liable and any portion of an Accepted Order not filled or shipped will be retained as an Accepted Order and delivered as soon as possible. However, Atlantic Tube & Steel Inc. may elect to cancel the Accepted Order, without liability, if we believe that the Product(s) will not become available within a reasonable period of time as Atlantic Tube & Steel Inc. so determines. Atlantic Tube & Steel Inc. also reserves the right to apportion Product(s) among its customers in such manner as Atlantic Tube & Steel Inc. considers equitable, and such determination shall be conclusive and binding on Customer without liability to Atlantic Tube & Steel Inc..
LIMITATION OF LIABILITY: Customer acknowledges and agrees that Atlantic Tube & Steel Inc. has no liability in contract, tort (including negligence or breach of statutory duty) by statute or otherwise, for loss or damage (whether direct or indirect) of profits, opportunity, revenue, goodwill or for any liquidated, indirect, special or consequential loss or damage whatsoever. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ATLANTIC TUBE & STEEL INC.’S LIABILITY UNDER ANY CIRCUMSTANCE AND FOR ANY REASON (SHALL, AT ATLANTIC TUBE & STEEL INC.’S OPTION, BE TO REPLACE NON-CONFORMING PRODUCT(S) OR REFUND THE PURCHASE PRICE PAID BY CUSTOMER FOR SUCH NON-CONFORMING PRODUCT(S) AND UNDER NO CIRCUMSTANCE SHALL ATLANTIC TUBE & STEEL INC.’S LIABILITY, UNDER ANY CONTRACT AND THESE TERMS, EXCEED THE TOTAL DOLLAR AMOUNT OF THE PRODUCT(S) PURCHASED BY CUSTOMER UNDER THE CONTRACT.
COLLECTION CHARGES: Customer shall pay all costs and expenses, including without limitation, reasonable attorneys’ fees and administrative charges Atlantic Tube & Steel Inc. incurs to protect its rights arising out of Customer’s failure to perform its obligations to Atlantic Tube & Steel Inc., including, without limitation, any attempt to collect any amount Customer owes Atlantic Tube & Steel Inc..
GOVERNING LAW: The transactions between Customer and Atlantic Tube & Steel Inc. are made in Ontario, shall be governed by the laws of the Province of Ontario and Customer agrees to submit exclusively to the jurisdiction and venue of the Courts of Ontario with respect to any dispute arising out of any transaction between Customer and Atlantic Tube & Steel Inc.; provided that Atlantic Tube & Steel Inc. may, at its option, commence proceedings in any jurisdiction where Customer carries on business or owns any assets. CUSTOMER AND ATLANTIC TUBE & STEEL INC. KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF ANY SUCH DISPUTE.
NO RIGHT OF SET-OFF: Each Accepted Order constitutes a separate and distinct contract when accepted by Atlantic Tube & Steel Inc., and Customer may not withhold payment of an invoice or offset same, in whole or in part, against sums Customer claims are due it by Atlantic Tube & Steel Inc. with respect to another Accepted Order, invoice or for any other cause or reason whatsoever.
RIGHTS ARE NOT EXCLUSIVE: Atlantic Tube & Steel Inc.’s rights hereunder are in addition to, and not in lieu of, any other rights and remedies to Atlantic Tube & Steel Inc. at law or in equity.
NOTICES: All notices of claims or disputes given by either Customer or Atlantic Tube & Steel Inc., with respect to any communications, Accepted Orders or these Terms, shall be in writing and sent by (a) first class mail with a copy by certified mail, return receipt requested, postage pre-paid, or (b) overnight delivery service, charges prepaid, and addressed as follows: (i) if intended for Atlantic Tube & Steel Inc., to its address at the location to which an Accepted Order was placed, and (ii) if to Customer, the address last known to Atlantic Tube & Steel Inc.. Notice will be effective the first business day after notice is sent.
MISCELLANEOUS: No waiver of any rights or remedies shall be binding on Atlantic Tube & Steel Inc. unless set forth in a written waiver signed by Atlantic Tube & Steel Inc.. Atlantic Tube & Steel Inc. does not give up any of its rights or remedies if it fails or delays in seeking a remedy, or if Atlantic Tube & Steel Inc. accepts a payment while there is breach by Customer. Any such waiver, delay or failure by Atlantic Tube & Steel Inc. on one occasion shall not be deemed a waiver by Atlantic Tube & Steel Inc. of any future default by Customer, or of any future right or remedy available to Customer. The Section, Paragraph and other headings in these Terms are for convenience of reference only, and shall not limit or otherwise affect the meaning of any provision contained in these Terms. The invalidity or enforceability of any provision in these Terms shall in no way affect the validity or enforceability of any other provision.
