Last updated April 2019
Terms of Sale
No: Warranties; Exclusion of Liability
These terms and conditions of sale (“Terms of Sale”) apply to any purchase of goods between you (“Buyer”) and Trican Corporation (“Trican”). All goods sold by Trican are PROVIDED “AS-IS” AND EXCEPT AS STATED HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
Trican assumes no liability for results of the use of goods purchased from Trican, including, without limitation, their use in combination with other components, assemblies or products, or their suitability or unsuitability for a particular use or a particular environment. Unless specifically indicated to the contrary, goods sold are not fire retardant and should not be exposed to intense heat or flame. Unless specifically indicated to the contrary, goods sold are not water resistant or waterproof. Trican neither undertakes to independently test nor makes any representation or warranty with respect to any manufacturer’s claims for performance for its products, including the claims of a manufacturer that its product is fire retardant, water resistant or waterproof. Any warranty given by any other manufacturer or supplier of goods sold or of component parts thereof is assigned by Trican to the Buyer to the extent permissible under law and the terms of such warranty.
Orders - Acceptance, Modification and Cancellation
All orders are subject to acceptance by Trican, and when so accepted shall constitute a contract. All orders are accepted subject to these Terms of Sale and, if Buyer is approved for purchasing on credit, subject to approval by Trican of the Buyer's credit at the time of shipment. Trican's acceptance of an order is conditioned upon the waiver by Buyer of any terms and conditions which differ from, vary from, or add to, these Terms of Sale, which shall constitute the entire agreement of the parties as to the subject matter hereof. The specifications applicable to goods sold by Trican shall be Trican's specifications, unless Buyer shall have furnished different specifications and Trican shall have agreed in writing to such specifications. Trican reserves the right to make changes or substitutions in the items ordered without the prior approval of or notification to the Buyer, as long as such changes do not adversely affect form, fit or function requirements. Orders may not be altered or modified by the Buyer except with the written consent of Trican. Trican, at its option, may cancel all or the remaining unfilled portion of any blanket or continuing order if (a) Buyer's payments are in default; (b) Buyer breaches any material provision of Trican's Terms of Sale; (c) substantial changes in materials or supplies occur; (d) causes beyond Trican's control make it impossible to ensure shipment; (e) Buyer becomes insolvent or is subject to a petition in bankruptcy; or (f) Trican withdraws its credit approval of Buyer. The Buyer may cancel the remaining unfilled portion of any blanket or continuing order upon written notice to Trican and payment of reasonable cancellation charges, determined by Trican in its sole discretion, which charges shall take into account goods already produced or in process, expenses incurred by Trican in connection with the order, and commitments made by Trican, as a consequence of the order; provided, however, that the cancellation charges shall not exceed the purchase price of the cancelled portion of the order.
“Trican” and the Trican logo, company name, service name, and any slogans that may appear on the Trican website, or in Trican materials, are trademarks or registered trademarks of Trican and may not be copied, imitated or used, in whole or in part, without the prior written permission of Trican. All other trademarks, registered trademarks, product names and company names or logos not owned by Trican that appear on the Trican website or in Trican materials are the property of their respective owners. Reference to any products, services or other information, by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement or recommendation by Trican.
Price and Terms
ALL QUOTED PRICES ARE BASED ON THE CURRENT NET WHOLESALE PRICES IN CANADIAN FUNDS PREVAILING AT THE TIME OF QUOTATION. ALL PRICES ARE SUBJECT TO CHANGE WITHOUT NOTICE AND THE PRICE CHARGED WILL BE THAT IN EFFECT AT THE TIME OF SHIPMENT. A minimum billing of C$50 is required and an order charge may apply.
Customers without established credit approval from the Trican credit department should remit payment with the order, or instruct Trican to ship C.O.D. for an extra fee. For Buyers approved by the Trican credit department, Buyer must pay Trican within thirty (30) days of the invoice date. A service charge of 1-1/2% per month (18% per annum) or the maximum amount allowed by applicable law will be added to all past due invoices. Buyer is responsible for payment of all applicable sales, use, excise, or other taxes, whether local, provincial or federal, with respect to the goods purchased, or returning to Trican the properly completed and signed sales tax exemption form. Buyer is responsible for any import or export charges.
Shipping and Delivery
Trican shall not be liable for delays in production or delivery due to causes beyond its control, including but not limited to acts of God, acts of Buyer, acts of civil or military authorities, priorities, fires, strikes, floods, epidemics, quarantines, war, delays in transportation and inability due to causes beyond Trican's control to obtain necessary labor, materials or manufacturing facilities.
A shipping date given by Trican is an estimated date. In no event shall Trican be liable to the Buyer for loss of use or profit or any other collateral, incidental, punitive, special or consequential damages resulting from delays in production or delivery, whether or not due to causes beyond Trican's control.
Trican will use its best judgment in packaging, packing, shipping and routing unless Buyer requests specific instructions with its order, and Trican accepts such instructions in writing. In the event of shortage or damage incurred enroute, Buyer must make its complaint to the delivering transportation agency and file a claim against such agency. In the event of a shortage in packing, any claim against Trican must be made in writing within ten (10) days of receipt of the merchandise. All shipments are made F.O.B. shipping point, unless otherwise agreed to in writing by Trican. Trican's responsibility for delivery ends with a signed bill of lading from the carrier. All risk of loss after Trican's delivery to the carrier shall be borne by the Buyer.
Limitation of Liability
TRICAN’S LIABILITY ARISING FROM OR RELATED TO THESE TERMS OF SALE AND/OR SALE OR USE OF THE GOODS (REGARDLESS OF THE THEORY OF DAMAGES OR LEGAL THEORY, WHETHER CONTRACT, TORT, FAULT, NEGLIGENCE, GROSS NEGLIGENCE, WARRANTY OR OTHERWISE) WILL BE LIMITED TO THE AMOUNT OF THE PURCHASE PRICE FOR THE PRODUCT IN QUESTION. IN ADDITION TO THE ABOVE LIMITATIONS OF LIABILITY, TRICAN WILL NOT BE LIABLE FOR ANY INCIDENTAL, COLLATERAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS, LOST REVENUE OR LOSS OF USE ARISING FROM OR RELATED TO THIS AGREEMENT AND/OR SALE OR USE OF THE PRODUCTS REGARDLESS OF THE THEORY OF DAMAGES OR LEGAL THEORY (WHETHER CONTRACT, TORT, FAULT, NEGLIGENCE, GROSS NEGLIGENCE, WARRANTY OR OTHERWISE) AND WHETHER OR NOT TRICAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY PROVISION SHALL BE APPLICABLE AND ENFORCED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
Returns of Goods from Non-Special Purchase Orders
Trican will accept returns of goods from non-Special Purchase Orders (defined below) purchased from Trican for up to 60 days from the date of invoice, subject to the following conditions:
- Buyer must obtain an authorization from Trican prior to the return of any goods by calling the general Customer Service number;
- All returns are subject to a restocking fee of $15.00 or 15% handling charge (whichever is greater, not to exceed a total of $125.00);
- Following Trican’s acceptance of the return of goods from Buyer, Trican will, at Trican’s option, offer to Buyer a product exchange, a credit for the purchase price of the goods or a refund for the purchase price of the goods (less restocking fee or handling charge).
- No returns on fabric will be allowed if the goods have been altered, cut or combined with any other goods;
- Goods must be returned in original packaging and be in the original condition; and
- Buyer is responsible for the cost of return shipping to Trican, and for arranging the return shipment. If Buyer requests that Trican facilitate the return, and Trican agrees to facilitate the return, a return shipping charge of (a) 5% of the price paid for the goods returned, or (b) Trican’s less-than-truckload shipping amount, whichever is higher, will be imposed on the Buyer.
Trican does not take title to returned items until the item arrives at a Trican facility. In no event shall the Buyer be entitled to any right of set-off against Trican.
TRICAN DOES NOT ACCEPT RETURNS OF GOODS FROM SPECIAL PURCHASE ORDERS. A Special Purchase Order is any order that requires Trican to obtain a quote from a manufacturer, or any order that requires Trican to place a custom order with a manufacturer (“Special Purchase Order”).
Compliance with Law
Buyer represents, warrants and covenants to Trican that Buyer shall only use the goods purchased by Buyer from Trican, in compliance with all applicable federal, provincial or local laws or regulations, including without limitation laws concerning labeling or trade compliance, and in a manner that does not violate the rights of any third party.
If any goods or services ordered by Buyer are supplied by Trican in accordance with designs or specifications of the Buyer, and such goods are not Trican's standard items or supplied in accordance with Trican's standard processes, Buyer shall indemnify Trican from any expense, loss, damage or liability which may be incurred by Trican on account of any infringement or alleged infringement of any Canadian, U.S. or foreign patent rights with respect to such goods or processes.
The sale of goods by Trican does not convey a license, express or implied, under any patent, patent applications, copyrights, trademarks, trade secrets or other proprietary rights in which Trican has an interest, nor does it convey rights to any descriptive data, including Trican's manufacturing drawings, processes or tooling.
THE PARTIES AGREE THAT THIS AGREEMENT, ANY SALES HEREUNDER, OR ANY CLAIM, DISPUTE OR CONTROVERSY BETWEEN TRICAN AND BUYER ARISING FROM OR RELATING TO THIS AGREEMENT, SHALL, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BE GOVERNED BY THE [LAWS OF THE PROVINCE OF ONTARIO AND FEDERAL LAWS OF CANADA, WITHOUT REGARD TO CONFLICTS OF LAWS RULES].
Buyer irrevocably submits to the exclusive jurisdiction of the province of Ontario for the resolution of any legal action arising out of this Agreement and irrevocably agrees that venue for such legal action shall lie exclusively in Toronto, Ontario, Canada, for any provincial court action.
Should Trican have any reason to believe that Buyer is in breach of these Terms of Sale, Trican reserves the right, in its sole discretion, to refuse to accept orders from Buyer, make any further sales to Buyer or pursue any other rights or remedies available.
Trican may at any time revise these Terms of Sale by updating this posting, so you should periodically examine the current Terms of Sale to which you are bound.
Any provision hereunder that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.