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General Terms and Conditions Of Sale
This is a standard outline of our Terms and Conditions of Sale. A more complete version detailed to your custom transaction and time of order may be found in your client portal or can be requested from mail@timarine.com
1. Definitions:
(a) “Buyer” - means the individual or entity identified on Buyer’s purchase order, or, if different, on TIM’s estimate, order acknowledgement or confirmation.
(b) “TIM”- means Theriault International Marine, a Nova Scotia, Canada registered Business.
(c) “Manufacturer”- means the manufacturer of a Product or of a component of a Product, as applicable.
(d) “Product”- means (i) any product designed or manufactured by or on behalf of TIM, or (ii) any third-party Manufacturer’s product offered for sale by TIM.
(e) “Estimate”- means an estimate provided by TIM to Buyer describing specifications and terms applicable to the potential sale to Buyer of certain Products.
2. Acceptance:
Unless TIM expressly agrees in writing, these Terms and Conditions will govern all purchase orders and estimates for Products, and TIM’s acceptance of any purchase order submitted by Buyer is conditional on Buyer’s acceptance of these Terms and Conditions. TIM specifically rejects, and Buyer disclaims, all pre-printed provisions in Buyer’s purchase order and any other Buyer forms or documents. TIM’s failure to object to any term or condition in any communication from Buyer will not be construed as agreement to such term or condition, nor will it be deemed a waiver of these Terms and Conditions. TIM reserves the right, in its sole discretion, not to accept any purchase order, including any purchase order issued in connection with an estimate provided by TIM. Without limiting the foregoing, (a) TIM may reject any purchase order if it determines, in its sole discretion, Buyer may not have the ability to perform its obligations hereunder and (b) TIM may condition its acceptance of any purchase order on Buyer’s execution of sale and/or lease documents in form prescribed by TIM and embodying credit terms acceptable to TIM.
3. Estimates And Prices:
The estimate, together with these Terms and Conditions, sets forth the terms and conditions upon which TIM is willing to contract for the sale of Products and any services described in the estimate. Unless otherwise specified by TIM, the prices shown on the estimate are those currently in effect as of the date of the estimate and will be adjusted to reflect any subsequent price changes after the estimate expiry date. The actual purchase price will be adjusted based on the price in effect on the date of shipment and/or current availability.
4. Taxes:
Prices do not include occupation, sales, use, privilege, excise or similar taxes, duties, tariffs or assessments, and Buyer will pay any such amounts arising from the sale of the Products. In lieu of payment, Buyer may, prior to delivery of the Products, provide TIM with a tax exemption certificate acceptable to the appropriate taxing authority. Sales tax laws of Nova Scotia, Canada (except when Buyer is exempt) apply to all purchases of Products and services.
5. Terms of Payment:
Unless TIM otherwise agrees in writing, Buyer must make payment for Products on the terms set forth in the estimate or order acknowledgement within 7 days of received signature of acceptance by bank to bank wire transfer only. On all other agreed to in written terms Buyer will pay interest on any past due invoices at a rate of 2 % per month on the unpaid balance, or, if lower, the maximum rate permitted under applicable law. Buyer will pay all costs, including reasonable attorneys’ fees, court costs and collection agency fees, which TIM incurs in the enforcement of this agreement against Buyer. TIM may, in its sole discretion, withhold shipment of orders if Buyer’s account is in arrears. Buyer acknowledges that TIM retains a security interest in all Products until Buyer renders payment in full, and Buyer hereby authorizes TIM to file any documents necessary to rectify TIM’s security interest.
6. Packing and Shipping:
TIM will pack, package and crate Products in accordance with its standard commercial practices. Unless stated otherwise in the estimate or order acknowledgement or confirmation, all Products will be shipped By common registered carrier from TIM’s Location of business or other TIM designated location. TIM may make partial shipments and submit invoices for such partial shipments in accordance with the payment terms set forth in Section 5 above
7. Risk of Loss:
Title and the risk of loss or damage to Products will pass to Buyer at the time TIM delivers the Products to the transportation company ( FOB seller's designated at equipment origin at time of sale with Onward freight to buyers final destinations the risk of the buyer. Any claims for shortages quantity, missing items, delays or damages occurring thereafter shall be made by Buyer directly to the transportation company. Any claims against TIM for shortages in shipment shall be made before releasing the transport company with a received signature of shipment and TIM shall not be responsible for any claim not asserted within such time. TIM will assist Buyer, upon Buyer’s request, in making proper claims against the transportation company.
8. Delivery.
Any shipping or delivery date specified in the estimate or order acknowledgement is merely an estimated date of shipment or delivery. TIM does not and will not guarantee any shipping or delivery date, and no person is authorized to commit to an estimated delivery date except in a writing signed by an authorized officer of TIM. TIM may estimate shipping or delivery dates to the best of TIM’s knowledge based on information provided by Buyer and conditions existing at the time of the estimate. TIM will make commercially reasonable efforts to ship the Products by the estimated shipping date, but will not be liable for any damages arising from a delay in shipment.
9. Force Majeure:
TIM will not be liable for any delay caused by any act of God, fire, flood, explosion, war, terrorism, insurrection, riot, embargo, action, statute, ordinance, regulation or order of any government or government agency, shortage of labor, material, fuel, supplies or transportation, strike, lockout or other labor dispute, accident, or any other cause, contingency, occurrence or circumstance of any nature beyond TIM’s control. If there is such a delay, TIM will have a reasonable extension of time in which to complete performance. If TIM is partially excused from performance, either by any of the conditions listed above or by the provisions of the Personal Property Security Act, TIM will not be required to make any allocation of production, shipments or deliveries in accordance with Personal Property Security Act or any equivalent or successor thereto.
10. Inspection and Acceptance of Products:
Buyer will inspect and accept or reject the Products immediately upon receipt to verify condition and quantity of items outlined in estimate are not accounted for or broken by not signing the transports BOL as in acceptance, but in no event will Buyer have the right to inspect, reject or revoke Buyer’s acceptance later than five days after delivery.
11. Delivery Delays:
When applicable under special order or manufacture conditons. If Buyer delays delivery of completed Products, and such delay continues for more than 30 days after the agreed delivery date, TIM may charge Buyer a monthly storage fee equal to 1.5% of the invoice price, calculated from the original delivery date. TIM may also invoice Buyer for the completed Products, and Buyer must pay for the Products in accordance with the terms of the original sale.
12. Warranties:
(a) Each Product or component thereof is subject to the terms, conditions and limitations of the applicable Manufacturer’s warranty, if any, for such Products or components as in effect as of the date of shipment. TIM will deliver with the Products copies of any applicable Manufacturers’ warranties.
(b) TIM makes no warranty of items manufactured by others, and TIM accepts no responsibility for any warranties or representations by third-party Manufacturers contained in any descriptive or advertising materials, including but not limited to statements regarding condition, productive capacity, operation or performance of Products or components not manufactured by TIM.
(c) In no event shall TIM’s sales advice, performance of engineering work or performance of application review or testing express or imply any additional warranty coverage other than as stated in the applicable Manufacturer’s warranty for any Product or component. Nothing in these Terms and Conditions or in any Manufacturer’s warranty for such Products or components shall be construed to provide Buyer with a warranty from TIM for any specific application of any Product, regardless of whether TIM offered Buyer any advice regarding the Product, performed any engineering work, on behalf of Buyer with respect to the Product or performed any application review or testing of such Product.
(d) Except as specifically stated herein and in TIM’s standard warranty relating to such Product, TIM makes no representation or warranty, express or implied, that any Product supplied by TIM complies with the requirements and standards of the Occupational Safety and Health Acts or of any other legislation or governmental rules and regulations, either Provincial or Federal.
13. Emissions Standards and Alteration of Products:
(A) TIM shall not be responsible for any failure of any Product to meet any government regulations on emission standards at any government level. We will supply all relevant documentation available as requested or that is available at our disposal during all stages of the transaction but the buyer is responsible for all emission standards and regulations under his global jurisdiction of governing regulations.
(B) After delivery and Product is installed, use of the Product in any manner for which it was not designed, failure of Buyer to follow installation or assembly instructions provided by TIM, or adjustment, modification, alteration or repair not expressly authorized in writing or performed by TIM of the Product or any device, component or element of design installed on the Product to control emissions. Further, Buyer shall indemnify, defend and hold harmless TIM, its affiliates, successors, assigns, officers, directors and employees from and against any and all actions, demands, liabilities, expenses, losses, damages, claims, fines, penalties and costs (including all reasonable attorneys’ fees) resulting from any improper maintenance, use, installation, assembly, adjustment, modification, alteration or repair of any Product, or component thereof, by Buyer, its affiliates, successors, assigns, officers, directors, employees or agents.
14. Limitations on Liability:
THE WARRANTIES HEREIN AND, EXCEPT AS OTHERWISE EXPRESSLY STATED THEREIN, IN ANY APPLICABLE MANUFACTURER’S WARRANTY ARE EXCLUSIVE AND ARE MADE ONLY TO BUYER. TIM MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS AND EXCLUDES ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND ANY REPRESENTATION OR WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. No person is authorized to give any additional warranties on TIM’s behalf or to assume for TIM any other liability, except in a writing signed by an authorized officer of TIM. TIM’S TOTAL LIABILITY FOR ANY CLAIM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE MANUFACTURE, SALE, DELIVERY OR USE OF THE PRODUCTS WILL BE LIMITED TO PROVEN DIRECT DAMAGES, NOT TO EXCEED THE PURCHASE PRICE OF SUCH PRODUCTS. IN NO EVENT WILL TIM BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY CLAIM FOR LOSS OF ACTUAL OR ANTICIPATED REVENUES OR PROFITS. The limitations on liability in these Terms and Conditions will apply regardless of the form of action, whether in contract, tort, strict liability or otherwise, and whether damages were foreseeable. The limitations of liability in this Section 14 will survive failure of any exclusive remedies provided in these Terms and Conditions or in any applicable Manufacturer’s warranty.
15. Remedies for Events of Default:
If Buyer fails to pay any amount due within 30 days of the due date, files a petition in bankruptcy or seeks relief under any bankruptcy, reorganization, insolvency, dissolution, liquidation or similar law of any jurisdiction, or becomes unable to pay or suspends payment of its debts as they become due, or if a court issues an order appointing a receiver, custodian or administrator over all or part of Buyer’s assets, TIM may terminate any outstanding purchase order. In addition, without waiving any other available remedies, TIM may: (A) declare immediately due and payable all sums due and to become due under any outstanding purchase order; (B) stop manufacture of any Products for Buyer; (C) stop all shipments in progress and future shipments; and (D) repossess any Products in which TIM has a security or ownership interest.
16. Waiver of Subrogation:
Buyer waives (for itself and its insurance carrier) all its rights of subrogation against TIM and TIM’s employees, agents, suppliers and subcontractors; provided that this provision will have no effect to the extent that it invalidates or otherwise limits Buyer’s insurance coverage.
17. Specifications:
The Manufacturer may change its Product specifications and manufacturing practices at any time without notice to Buyer; provided that such changes do not materially impair the performance of the Products. The Manufacturer will exclusively own all materials and information provided by TIM to Buyer, including, without limitation, specifications, drawings, engineering data and technical designs
18. All Sales Final:
Unless otherwise expressly agreed in writing by TIM, all sales are final. No returns will be accepted by TIM without a prior written authorization to return materials signed by a duly authorized agent of TIM. TIM reserves the right to inspect any returned Products for damage and may, in its sole discretion, refuse to accept the return of any damaged Products. Returned Products accepted by TIM after TIM’s authorization may be subject to a restocking charge equal to 33% of the actual purchase price of the returned Products and the Buyer shall be responsible for all costs for return shipment of such Products from the Buyer shall be paid by the Buyer.
19. Changes; Cancellation:
Buyer may cancel a purchase order only with TIM’s express written consent. Any change to a purchase order must be in writing and signed by duly authorized representatives of TIM and Buyer. Change orders will specify any resulting adjustments in delivery schedule or price.
20. Compliance with Laws:
Buyer will comply with all applicable laws affecting the purchase and use of the Products, including, without limitation, any applicable tax/tariff, export/import or emission laws.
21. Confidential Information:
Buyer will not disclose any confidential or proprietary information of TIM, including, without limitation, any information regarding pricing of the Products or the other terms and conditions of sale of the Products to Buyer. In addition, Buyer will not use any of TIM’s provided marketing information to gain a sales advantage from our competitors without written consent.
22. No Partnership or Joint Venture:
The parties agree that nothing in these Terms and Conditions will create any agency, employment, partnership, joint venture or fiduciary relationship between Buyer and TIM. If your intent is to resell the products it is done so on your own assumed name and business liability unless expressed written consent is given by TIM.
23. Assignment:
These Terms and Conditions are binding upon, and inure to the benefit of Buyer, TIM and their successors and permitted assigns. Buyer may not assign all or any portion of its rights or obligations hereunder without the prior written consent of TIM. TIM may assign, delegate or subcontract a purchase order, in whole or in part, without Buyer’s consent.
24. Waiver:
TIM’s waiver of any breach of any provision contained in these Terms and Conditions will not waive any other breach by Buyer. TIM’s delay or failure to enforce its rights under these Terms and Conditions all not be deemed a waiver of such rights.
25. Entire Agreement; Amendments:
These Terms and Conditions, any applicable Manufacturer’s warranty from TIM and TIM’s estimate or order acknowledgement or confirmation, constitute the entire agreement of the parties covering the Products provided by TIM to Buyer. These Terms and Conditions supersede all other written or oral agreements between the parties. TIM and Buyer may modify these Terms and Conditions, or the associated estimate or purchase order acknowledgement, only by an express written agreement signed by both parties.
26. PRIVACY:
(A)PRIVACY POLICY
When you visit the TIM website, our web server automatically collects a limited amount of information essential for the operation and security of the site. Some of this information (for example, browser type) does not identify who you are, while other information, such as your internet domain name or IP address may identify you. The extent of personal identification depends, in a large part, on the "naming standards" followed by your internet service provider.
When you voluntarily send us electronic mail, we will keep a record of this information so that we can respond to you and assist you during the lifespan of our transaction. By initating correspondance with us you agree to opting into our newsletter for products or sevices related to your inquiry. These newsletter by anti-spam law have an "opt out" link in every email sent.
(B) DISCLAIMER OF LIABILITY
The information contained on this website is provided as accurate as possible, but we cannot guarantee that the information is current or accurate. Changes to the information on the website may be made at any time without prior notice. Readers should verify the information in written form before acting on it.
For clarification of any item on this site or for more specific information, contact mail@timarine.com or call +1 902 914 3388
(C)THIRD PARTY LINKS
This website contains links to other websites. TIM is not responsible for the privacy practices of those websites. Links to other websites are not endorsements or approvals of those sites, the third parties named therein, or their products and services.
The display of trademarks, trade-names, or service marks on this websites does not convey or create any license, privilege or authorized affiliation of any kind.
26. Governing Law; Limitation of Actions:
This agreement will be governed by the internal Federal and Provincial laws of the Province of Nova Scotia. All shipping and delivery terms specified herein will have the definitions set forth by “Incoterms® 2010 rules” document published by the International Chamber of Commerce.
BUYER HEREBY CONSENTS TO THE JURISDICTION OF ANY PROVINCIAL COURT LOCATED WITHIN DIGBY COUNTY, NOVA SCOTIA OR ANY FEDERAL COURT LOCATED IN THE PROVINCE OF NOVA SCOTIA AND CONSENTS THAT ALL SERVICE OF PROCESS BE MADE BY REGISTERED OR CERTIFIED MAIL DIRECTED TO IT AT ITS ADDRESS SET FORTH ON THE PURCHASE ORDER. NOTHING IN THIS AGREEMENT AFFECTS THE RIGHT OF TIM TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY ACTION OR PROCEEDING AGAINST BUYER IN THE COURTS OF ANY OTHER JURISDICTION THAT HAS JURISDICTION OVER BUYER. TO THE EXTENT PERMITTED BY LAW, BUYER WAIVES TRIAL BY JURY AND WAIVES ANY OBJECTION THAT IT MAY HAVE BASED ON LACK OF JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
27. COPYRIGHT:
This website is protected under the copyright laws of Canada