(a) These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the quartz slabs and any other goods (“Goods”) by Hyundai L&C Canada Inc. operating as HanStone Canada (“Seller”) to the buyer who agrees to buy the Goods from Seller in accordance with the price list, quotation, confirmation of sale and/or invoice attached to these Terms (“Buyer”). Notwithstanding anything herein to the contrary, if a separate written contract pertaining to the sale of the Goods has been signed and entered into by Seller and Buyer, the terms and conditions of such separate contract shall prevail to the extent they are inconsistent with these Terms.
(b) Subject to (a) above, the accompanying price list, quotation, confirmation of sale or invoice, as applicable (the “Sales Confirmation”) and these Terms (collectively with the Sales Confirmation, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement prevails over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfilment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend this Agreement or these Terms.
(a) HanStone is made from pure, natural quartz. Variation in colour, shade and pattern is an inherent and natural characteristic of these Goods. A sample piece is a general representation based on a small, select cut of a full slab and does not indicate all design characteristics of the full slab or the final installed Goods. Colour blotches are intended and an inherent part of design in many colours to enhance the overall natural aesthetics. Use of acetone or any other harsh chemicals or abrasives is strictly prohibited on the Goods, as it will damage the surface. Any such damage is not covered under warranty. Although HanStone is durable, all stone can be damaged or chipped by force. No stone surface is chip-proof, scratch-proof, stain-proof, or heat-proof. The Goods may be damaged by sudden and/or constant change of temperature or direct heating of the surface with hot pots, pans, or other cooking units. Use of trivets or hot pads is always recommended. Structural support is required for all applications. HanStone is not a seamless product; pattern and shade may vary where there are seams. Due to the nature of the design, texture and surface finish, certain colours with leathered, matte or riverwashed finishes require more attention, care, and maintenance. Stone professionals must remove the protective film and inspect material prior to cutting or fabrication.
(b) Any imported Goods, which are part of the Seller’s Import Collection, will be identified by Seller as such. Buyer acknowledges that Goods identified as part of the Import Collection are not manufactured in Canada.
(c) Availability and sizing of Seller’s Goods is subject to change without prior notice from Seller. Buyer is responsible for confirming availability of Goods when submitting its purchase order.
(a) The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability and lead times. Buyer acknowledges that Seller has no control over availability of materials required for production of the Goods, and as a result delays may occur due to shortages or other issues relating to availability of such materials. In no event shall Seller be liable for any losses or damages of any kind whatsoever resulting from delays or late deliveries. Further, Seller shall not be liable for any delays, loss or damage in transit.
(b) Delivery of the Goods shall be specified in writing and shall be delivered either to (i) the location of Seller’s warehouse (the “Seller’s Warehouse”) or (ii) a location provided by the Buyer and agreed to by the Seller (the “Buyer’s Location”) using Seller’s standard methods for packaging and shipping such Goods. The Seller’s Warehouse and the Buyer’s Location shall each be referred to as a “Delivery Point”. If the Goods are delivered to the Seller’s Warehouse, (iii) the Buyer shall take delivery of the Goods within 5 days of Seller’s notice (email or phone call being sufficient) that the Goods have been delivered to the Delivery Point, and (iv) Buyer shall be responsible for all costs relating to Buyer’s collection and transport of the Goods from the Delivery Point. If the Goods are delivered to the Buyer’s Location, (v) Buyer shall take delivery of the Goods immediately upon delivery to the Delivery Point, and (vi) Buyer shall be responsible for all unloading costs and any other costs relating to receipt of the Goods at the Delivery Point, including costs of equipment and labour reasonably suited for receipt of the Goods.
(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfilment of Buyer’s purchase order.
(i) in the case of delivery to the Seller’s Warehouse, for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or
(ii) in the case of delivery to the Buyer’s Location, Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations,
then (x) risk of loss to the Goods shall pass to Buyer; (y) the Goods shall be deemed to have been delivered; and (z) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
(a) The quantity of any instalment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
(b) Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within 5 days after the date when the Goods would in the ordinary course of events have been received.
(c) Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
(a) Buyer shall remove the protective film and inspect the Goods prior to commencing any cutting, polishing, fabrication, installation or alteration in respect of the Goods, failing which Buyer will be deemed to have accepted the Goods. Buyer must complete its inspection within 30 days after receipt of the Goods (the “Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Non-Conforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Non-Conforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order, and (ii) defective Goods.
(b) If Buyer timely notifies Seller of any Non-Conforming Goods, Seller shall, in its sole discretion, (i) replace such Non-Conforming Goods with conforming Goods, (ii) discount the Price of the Goods, or (iii) credit or refund (in full or partially) the Price for such Non-Conforming Goods. Buyer shall ship, at its expense and risk of loss, the Non-Conforming Goods back to Seller’s facility from which the Goods were shipped to Buyer, unless Seller agrees to alternative shipping arrangements. If Seller exercises its option to replace Non-Conforming Goods, Seller shall, after receiving Buyer’s shipment of Non-Conforming Goods, ship to Buyer, at Buyer’s expense and risk of loss (unless otherwise agreed in writing by Seller), the replaced Goods to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 8(b) are Buyer’s exclusive remedies for the delivery of Non-Conforming Goods.
(a) Buyer shall purchase the Goods from Seller at the prices (the “Prices”) set forth in Seller’s published price list in force as of the date that Seller accepts Buyer’s purchase order. All Prices are subject to change without notice and are not guaranteed, except that Prices for orders that have been accepted by Seller are only subject to change after acceptance in the circumstances described in Section 11(b) hereof.
(b) The Price quoted by Seller has been determined in part based on the cost of materials to Seller as of the date of the price quote. In the event that there is a significant increase in the cost of materials to Seller (through no fault of Seller) during the period after the date Buyer’s purchase order is accepted by Seller and prior to order fulfilment, Seller may (in its sole discretion) adjust the Price (increasing the Price by not more than 50%) by providing a written notice of such Price adjustment to Buyer prior to fulfilment of Buyer’s order (a “Price Adjustment Notice”). Buyer shall have the option to terminate its purchase order without liability hereunder, provided that such option is exercised by Buyer by providing written notice to Seller within 5 days after receipt of a Price Adjustment Notice.
(c) Despite Seller’s reasonable efforts, Prices may be inaccurately recorded in a confirmation of sale due to clerical or system errors. Seller will promptly inform Buyer of any such error promptly following Seller’s discovery of the error. Notwithstanding any such error, Buyer shall be responsible for payment of the actual Price indicated in Seller’s price list or quotation or negotiated between Seller and Buyer, as applicable.
(d) All Prices are exclusive of all harmonized sales tax, goods and services tax, sales tax, value added tax, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
(a) Buyer shall pay all invoiced amounts due to Seller within the time and by the payment method specified in Seller’s invoice. Buyer shall make all payments hereunder in Canadian dollars, unless otherwise specified and agreed by Seller. Seller’s payment terms are subject to change at any time in Seller’s absolute discretion, including, but not limited to, timing of payment, payment method, and credit limit (if applicable to Buyer).
(b) Buyer shall pay interest on all late payments at the lesser of the rate of: 18% per annum or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, legal fees on a solicitor-client basis. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for 5 days following written notice thereof.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
(a) Seller provides a limited warranty for the Goods in accordance with the terms and conditions and for the period (the “Warranty Period”) specified in Seller’s warranty policy located at https://hanstone.ca/en/register-warranty/. Seller’s warranty policy is subject to change without notice, provided that the version appearing at the foregoing URL at the time that an order for Goods has been accepted by Seller shall apply to such Goods and will not be subject to change after acceptance.
(b) EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 15(a), SELLER MAKES NO CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) CONDITION OR WARRANTY OF MERCHANTABILITY; (b) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) 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.
(c) Seller shall not be liable for a breach of the warranties set forth in Section 15(a) unless: (i) Buyer gives written notice of the defective Goods, reasonably described, to Seller within 30 days of the time when Buyer discovers or ought to have discovered the defect; (ii) if applicable, Seller is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 15(a) to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.
(d) Seller shall not be liable for a breach of the warranties set forth in Section 15(a) if: (i) Buyer (or in the event of resale by Buyer, the end-user) makes any further use of such Goods after giving the notice described in Section 15(c); (ii) the defect arises because Buyer (or in the event of resale by Buyer, the end-user) failed to follow Seller’s oral or written instructions as to the storage, fabrication, installation, commissioning, use, care or maintenance of the Goods; or (iii) Buyer (or in the event of resale by Buyer, the end-user) repairs or attempts to repair such Goods without the prior written consent of Seller.
(e) Subject to Section 15(c) and Section 15(d) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part of such Goods) or (ii) credit or refund the price of such Goods at the pro rata contract rate, provided that if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
(f) THE REMEDIES SET FORTH IN SECTION 15(e) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 15(a).
(a) EXCEPT WHERE SUCH EXCLUSIONS ARE PROHIBITED BY LAW, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (BREACH OF CONTRACT, TORT, BREACH OF PRIVACY, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER BY BUYER FOR THE GOODS SOLD HEREUNDER.
(c) The limitation of liability set forth in Section 16(b) shall not apply to (i) liability resulting from Seller’s gross negligence or wilful misconduct and (ii) death or bodily injury resulting directly from Seller’s acts or omissions.
20. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
21. Intellectual Property. Seller’s name, logo, its trademarks including but not limited to: BRIONNE, hanex, HanStone, NATURALLY CANADIAN, Hanstone Q, HanStone Quartz NATURELLEMENT CANADIEN, CRESCENDO PREMIUM FLOORING COLLECTION, together with all related names, logos, product and service names, designs, images, and slogans, are trademarks of Seller or its affiliates or licensors. Buyer must not use such marks without the prior written permission of Seller. Use of any such property, except as expressly authorized, shall constitute an infringement or violation of the rights of the property owner and may be a violation of federal or other laws and could subject the infringer to legal action.
22. Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
23. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
24. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
25. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
26. Governing Law. All matters arising out of or relating to this Agreement 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) that would cause the application of the laws of any jurisdiction other than those of the Province of Ontario. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
27. Choice of Forum. Any legal suit, action, litigation or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, shall be instituted in the courts of the Province of Ontario, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation or proceeding. Each party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
28. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email (in each case, with confirmation of transmission) if sent during the addressee’s normal business hours, and on the next business day if sent after the addressee’s normal business hours; and (d) on the 4th day after the date mailed by certified or registered mail by the Canada Post Corporation, return receipt requested, postage prepaid.
29. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
30. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Section 17 (Compliance with Law), Section 20 (Confidential Information), Section 21 (Intellectual Property), Section 26 (Governing Law), Section 27 (Choice of Forum) and Section 30 (Survival).
31. Amendment and Modification. Seller reserves the right to modify these Terms at any time and from time to time without any prior notice to Buyer; provided that with respect to any purchase order already submitted by Buyer and accepted by Seller, these Terms may only be amended or modified in writing, identified as an amendment to these Terms, and signed by an authorized representative of each party.
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