General Terms and Conditions of Sale and Delivery of TSK Laboratory International Canada Inc. (“TSK”)
1. Quotation and order confirmation
1.1 These Terms and Conditions of Sale and Delivery (the “General Terms”) apply to all offers and transactions between TSK and the purchaser (the “Purchaser”) of TSK products (the “Product”). If the General Terms in combination an order confirmation apply, the terms in the General Terms shall prevail.
1.2 Acceptance of an order confirmation by the Purchaser for the purchase of any Product shall be assumed if, within seven working days following receipt of the order confirmation, the Purchaser has not registered a written objection. A written objection may also be provided by e-mail or by other electronic means.
1.3 The product description included by the Purchaser in his offer and/or his orders shall only be binding if that product description has clearly been specified by TSK in an order confirmation.
1.4 The quotations notified by TSK shall be valid for 1 month.
1.5 These General Terms have also been agreed upon for the benefit of all directors and shareholders of TSK, and for the benefit of all persons who work for TSK and third parties engaged by TSK. These parties have the right to invoke these General Terms as if they were TSK.
1.6 Deviations from these General Terms shall only be valid if consented to by TSK in writing.
1.7 The General Terms shall take precedence over any terms and conditions of purchase by a Purchaser, including any terms set forth in an order confirmation.
1.8 TSK shall have the right to adapt these General Terms at any time without prior notification to the Purchaser.
2. Brochures, specifications, samples
2.1 Product descriptions on the TSK website, in catalogues, brochures, price lists, etc. apply only as approximate descriptions of the Products and are entirely non-binding and do not constitute a representation or warranty relating to the Products.
2.2 The quality and product description of Product samples (the “Samples”) are indicative for the appearance of the Product. It is permitted that deviations may occur in the finished Products.
2.3 The specifications as set out in the order confirmation may vary from time to time, at the sole discretion of TSK. As part of product development by TSK, the specifications may undergo changes. Any changes to the specifications shall take precedence over the specifications as stated in the order confirmation.
2.4 The potential Purchaser shall return the Samples or models to TSK, at the first request of TSK.
3. Use of the Products delivered / to be delivered
3.1 TSK does not assume any responsibility in determining whether the Products delivered and/or to be delivered is suitable for the intended use by (the customers of) the Purchaser or its end customers.
4. Prices
4.1 The prices specified in order confirmations issued by TSK include shipping and applicable taxes.
4.2 All prices specified by TSK are based on the purchase prices applicable for TSK at the time the offers or confirmations were issued, the exchange rate for the relevant foreign currency as stated in its offer and order confirmation, import duties, if any, and equivalent charges, insurance tariffs, carriage costs, taxes and margin schemes, etc. In the event of changes to one or more of the cost price determining factors referred to above, or other factors, TSK shall be entitled to pass on those changes to the Purchaser in the relevant sales invoice.
4.4 The specified prices set out in the order confirmation are based on the quantities provided by the Purchaser. If the actual quantity of the Product deviates from the quantity on which the prices were based, TSK reserves the right to adjust the prices to accurately reflect the quantity purchased.
5. Payment
5.1 Payment for the amount of the Products owed by the Purchaser to TSK must be made by credit card on the same date as the invoice date (“Payment”). Prior written consent must be provided by her TSK for payment for products by any other method.
5.2 The Purchaser is solely responsible for all additional bank charges and fees incurred in connection with any Payment.
5.3 In accordance with Section 5.1, in the event of a late Payment, the Purchaser is immediately in default, without any prior notice of default required. TSK shall be entitled to charge interest on the remaining amount not yet paid, in the amount of 1.5% per month or part of a month. Following each of the first two reminders, reminder costs in the amount of CAD$50 excluding appliable taxes may also be charged, and CAD$100 excluding applicable taxes for the third and all subsequent reminders. The Purchaser shall moreover be required to reimburse all extrajudicial costs to TSK, with a minimum of 10% of the principal amount.
5.4 Payments made by the Purchaser shall first reduce the costs payable, subsequently the interest payable and finally the oldest outstanding invoices, irrespective of instructions from the Purchaser, stating otherwise.
5.5 TSK at all times reserves the right to demand security for timely Payment in respect of deliveries already made and still to be made, which security at the discretion of TSK may take the form of prepayment, bank guarantee, mortgage, pledge, contract or surety bond. If insufficient surety is provided in response to TSK’s request, TSK is authorized to suspend further implementation of agreements entered into with TSK, without liability for any losses that may be suffered by of the Purchaser. Additionally, TSK is authorized to require that Payment must be in the form of cash on Delivery (as defined hereunder), irrespective of any prior agreement entered into prior by TSK and the Purchaser.
5.6 In the event of non, late or incorrect compliance by the Purchaser with any obligation which may arise for the Purchaser from any agreements entered into with TSK, and in the event an application has been made for the Purchaser’s bankruptcy, suspension of payments, a debt rescheduling scheme, change of control of the Purchaser, cessation or winding up of his business, TSK shall at all times be authorized – without any obligation to pay compensation, without prejudice to other rights accruing to TSK and without any reminder or notice of default being required – to terminate the agreement in question, without prejudice to its entitlements to compensation, while at that time, TSK shall further be entitled, subject to the same conditions, to terminate any other current orders with the Purchaser in question, if not yet (fully) implemented. Each termination shall at all times result in the immediate payment of all outstanding amounts payable to TSK by the Purchaser.
6. Property rights
6.1 TSK will retain ownership of any Products purchased until the Purchaser has paid all amounts payable to TSK in respect of each Delivery of Products by TSK to Purchaser. Payment for the Product includes the purchase price and any surcharges, increases and payments payable in respect of the terms and conditions set out in each order, but also any interest and costs and damages due to attributable breaches. The risk for the Products to be delivered shall be transferred to the Purchaser if and as soon as these Products have left the warehouse and/or the factory of TSK.
6.2 The Products are trademark protected and are the exclusive property of TSK, and its successors, assigns, licensors, and/or suppliers. The Purchaser is not authorized to register or allocate rights in whatever form if and in as much as such action infringes the intellectual property rights of TSK.
6.3 Unless TSK has provided prior written consent, TSK retains the intellectual property rights to each product, including any Products developed in collaboration with the Purchaser.
7. Delivery
7.1 Delivery of the Product shall be by Canada Post unless otherwise agreed upon in writing by both TSK and the Purchaser (the “Delivery”).
7.2 The date of Delivery shall be agreed upon after the placement of an order. Unless otherwise agreed in writing, an agreed date of Delivery shall only be an approximation of Delivery and entirely non-binding. TSK shall not be held liable for any unforeseen delays.
8. Transport packaging
8.1 The Delivery shall be packaged in accordance with the general packaging methods of TSK. If a Purchaser requires packaging by a different method (the “Non-Standard Packaging”), the Purchaser must include such request at the time of placing the order for the Products and is solely responsible for all additional costs related to the Non-Standard Packaging.
8.2 The packaging for the Product shall comply with the applicable provincial laws and federal laws of Canada.
9. Products for resale
9.1 The Purchaser shall not export, re-export or otherwise transfer, directly or indirectly, any Products outside of Canada without prior written consent from TSK.
9.2 Offering the Products for resale outside of Canada without prior written consent from TSK will automatically result in a suspension of the Purchaser’s customer account and a hold on any future shipments of the Products.
9.3 The Purchaser who contrary to Section 9.1 exports, re-exports of otherwise transfers any goods outside of Canada without prior written consent from TSK shall be held liable to TSK for an immediately payable penalty of CAD$10,000 for each breach and an additional CAD$2,500 per day of any continued breach, without prejudice to TSK’s right to claim damages in full.
9.4 Furthermore the Purchaser who contrary to Section 9.1 exports, re-exports of otherwise transfers any Products outside of Canada without prior approval from TSK will be considered liable for any damages that may occur due to the forbidden distribution of any Products. The Purchaser shall indemnify TSK and TSK’s parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of the Purchaser’s breach of this Section 9.4, or the Purchaser’s violation of any law or the rights of a third-party for any damages that may occur and for any claims issued against TSK by a third party with respect to such damages.
10. Shortcomings
10.1 If a deviation in the quantity of the Products purchased by the Purchaser (collectively, the “Shortcomings” and each a “Shortcoming”) exceeds more than 4% of the total Products received in a Delivery, the Purchaser has a right to a pro rata adjustment of the invoice amount.
10.2 Color deviations from the Samples which remain within the margins and are considered as reasonable and customary in the market, are not considered Shortcomings.
11. Liability of TSK
11.1 If more than 4% of a Delivery contains Products with Shortcomings, TSK has the sole discretion to reimburse the invoice amount or to redeliver the Products (the “Redelivery”). TSK shall not be liable for any Shortcomings below this limit.
11.2 TSK can only be held liable after receiving a notice of default in which TSK is set a reasonable term to fulfil its contractual obligations and TSK has failed to remedy its default within the reasonable term set in the notice of default.
11.3 Products recognized by TSK as Shortcomings may be returned to TSK according to the instructions and for the account of TSK.
11.4 If incidents occur which could not be foreseen by TSK or incidents arise over which TSK has no influence, which impede TSK in implementing the agreed Delivery, TSK shall not be liable, due to force majeure. Force majeure is understood to mean, inter alia, the circumstance of weather conditions, earthquakes, fire, power failure, loss, theft or destruction of tools or materials, late delivery and/or shortcomings by suppliers of TSK, road blocks, strikes or work stoppages and import or trade restrictions.
11.5 Under no circumstances TSK shall be liable for loss of production, loss of production time, loss of profit or other indirect losses, or, special or consequential damages that the Purchaser may suffer.
11.6 If TSK is liable any Shortcomings, the Purchaser may demand compensation for any demonstrable direct losses suffered by the Purchaser.
11.7 If TSK is liable for the delay of Delivery, the Purchaser may demand compensation for any demonstrable direct losses suffered by the Purchaser.
11.8 The compensation mentioned in Section 11.6 and 11.7 shall not exceed the total price of the invoice order and has a maximum reimbursement amount of CAD$10,000, for the Products with Shortcomings or for the non-Delivery or delayed Delivery, except in the case of deliberate action or gross negligence on the part of the directors of TSK.
11.9 Any liability for Shortcomings and Redeliveries shall expire 6 months after the Delivery.
12. Obligation upon the Purchaser to inspect the delivered Products
12.1 The Purchaser is required to inspect the Delivery immediately following receipt or immediately after arrival of the delivered Products at the business address of the Purchaser.
12.2 Complaints relating to errors or Shortcomings must have been submitted to TSK in writing, within 1 week following the Delivery.
13. Product liability
13.1 The Purchaser guarantees TSK that the illustrations and/or additional documentation for the Products prepared by the Purchaser contain all warnings and preventive measures required within Canada. The Purchaser shall indemnify TSK and its successors and assigns, and any of their respective officers, directors, employees, members, agents, representatives, licensors, advertisers, and suppliers from any liability, loss, claim, and expense (including reasonable legal fees) against any and all claims from third parties against TSK directly or indirectly relating to and/or arising from insufficient or incorrect information provided by the Purchaser in respect of the correct treatment and/or use of the Products. TSK reserves the right to assume, at TSK’s sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement, or compromise, and the Purchaser agrees to fully cooperate with TSK in the defense of any such claim, action, settlement or compromise negotiations, as TSK may request.
14. Confidentiality
14.1 Except for TSK’s suppliers, TSK and the Purchaser shall undertake to pass on no information to third parties obtained in connection with the offers and/or orders, if the offers and orders contain confidential information.
15. Applicable law, competent court
15.1 The laws of the Province of British Columbia and the federal laws applicable therein shall govern these General Terms and Conditions of Sale and Delivery in all respects, without giving effect to conflicts of laws principles.
16. Obtaining TSK’s Consent
16.1 To request the consent of TSK for any of the actions for which such consent is required under these General Terms and Conditions of Sale and Delivery, please send an e-mail to [email protected]. TSK reserves the right to refuse any such requests in its sole discretion.