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Westcon Canada Systems (WCSI) Inc.
Terms and Conditions of Sale
These terms and conditions of sale ('Terms and Conditions') apply to all sales of products and services ('Products') by Westcon Canada Systems (WCSI) Inc. ('Westcon') to you ('Customer').
1. Acceptance. Customer will be deemed to have accepted the Terms and Conditions by sending a purchase order to Westcon. Westcon's acceptance of Customer's purchase order is conditioned upon Customer's acceptance of the Terms and Conditions, without addition or modification. In the event that Customer's purchase order is deemed to be an offer, Westcon's acknowledgement or performance of the purchase order is conditioned upon Customer's acceptance of the Terms and Conditions, without addition or modification and the Customer's acceptance of delivery without objection to the Terms and Conditions constitutes acceptance of the Terms and Conditions.
2. Order and Shipment. Customer will order Products by sending a complete purchase order in a form acceptable to Westcon. Westcon may accept or reject the purchase order for any reason. Westcon will not be bound by any terms or conditions set forth in Customer's purchase orders unless previously agreed to in writing.
Unless otherwise agreed in writing, delivery will be made in accordance with Westcon's shipping policy on the date of shipment. All shipments of Products by Westcon to Customer will be FOB point of shipment. Insurance coverage, transportation costs and all other expenses applicable to shipment from Westcon to Customer's identified delivery place will be the responsibility of Customer. Title to the Product and risk of loss will pass to the Customer upon delivery by Westcon to the carrier or Customer's representative at Westcon's point of shipment.
Customer must notify Westcon, by calling Westcon's Customer Service Department within forty-eight (48) hours after delivery, of any claimed shortages or rejections and Westcon must receive a completed 'Short Shipment Form' from Customer via mail or facsimile within fifteen (15) days of the claim. Failure to give such notice of a claim will be deemed an acceptance in full of any such delivery. Approval of any short shipment claim is in Westcon's sole power and discretion. In the event that Westcon grants the short shipment claim, Westcon will replace the lost or damaged Product or issue a credit memo, in its sole discretion. In the event that Westcon does not approve the claim, Customer will pay the total invoice.
3. Price and Payment. Prices for Products will be as set forth in Westcon's then applicable price list or agreed pricing arrangement, which does not include applicable taxes, as defined herein, and shipping costs.
Payment is due thirty (30) days from date of the invoice, except that COD accounts are due upon delivery. Customer will pay a late fee of one and one half percent (1.5%) per month (eighteen percent (18%) per annum) on any outstanding balance owed, or the maximum amount permitted under applicable law. Westcon reserves the right to withhold shipment of any part of an order or to require pre-payment for any given shipment if Customer does not make timely payment.
Customer will pay all applicable taxes, duties, licenses, excises and tariffs ('Taxes') levied upon the sale, purchase or delivery of the Products.
4. Security Interest. Customer grants Westcon and Westcon retains a purchase money security interest in the Products. Customer agrees to cooperate with Westcon as may be required to record or perfect Westcon's security interest.
5. Returns and Warranty Assistance Service. Customer may return Products purchased from Westcon and receive a credit up to the amount invoiced, subject to the following: (a) the Product is returned to Westcon within thirty (30) days of the invoice date; (b) the list price of the Product has not decreased since its shipment; (c) the Product is new and unused; (d) the Product is in its original package, which has not been damaged or altered; and (e) Westcon determines, in its sole judgment, that Customer is not in default of the Terms and Conditions or any other Agreement between the parties. Products purchased from Westcon that are determined to be defective within thirty (30) days of the invoice date, may be returned to Westcon for assistance in processing a manufacturer's warranty, provided that the Product is covered by a manufacturer's warranty and the Customer is determined, in Westcon's sole judgment, to be not in default of the Terms and Conditions or any other Agreement between the parties. Upon satisfaction of the foregoing, Westcon will issue a return material authorization ('RMA') All returned Products must be shipped by Customer FOB destination and received by Westcon within fifteen (15) days of the issuance of the RMA. NOTWITHSTANDING THE FOREGOING, WESTCON MAKES NO WARRANTY OR REPRESENTATIONS REGARDING THE PRODUCTS. All other returns of Products are subject to Westcon's prior approval and applicable fees.
6. DISCLAIMER AND LIMITATION OF LIABILITY. WESTCON MAKES NO WARRANTIES OF ANY KIND WITH REGARD TO THE PRODUCTS. WESTCON DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL WESTCON BE LIABLE FOR ANY LOSS, DAMAGE OR COST FOR BREACH OF WARRANTY.
WESTCON WILL NOT, IN ANY EVENT, BE LIABLE FOR ANY LOST REVENUE, PROFIT, USE OF DATA, INTERRUPTION OF BUSINESS OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, OR IN ANY WAY CONNECTED TO THIS AGREEMENT, EVEN IF WESTCON HAS BEEN ADVISED OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, OR OTHERWISE. IN NO EVENT WILL WESTCON'S LIABILITY TO CUSTOMER EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT THAT IS THE BASIS FOR THE CLAIM.
7. Credit Memos and Refunds. Credit memos may be available to Customer pursuant to Westcon's then applicable policies and programs which may include, without limitation, Product returns, co-op advertising, rebates and allowances ('Credit Memos'). Customer may apply Credit Memos to their Westcon account balance. Refunds will be issued, upon request of Customer, only in the event of an overpayment. No other Customer will be entitled to receive a refund.
8. Export Restrictions. Customer will obtain all licenses, permits and approvals required by any government and will comply with all applicable laws, rules, policies and procedures of the federal and provincial governmental authorities. Customer will indemnify and hold harmless Westcon for any violation or alleged violation by Customer of such laws, rules, policies or procedures.
9. General. These Terms and Conditions will be construed in accordance with the laws of the province of Québec, other than conflicts of law. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms and Conditions. The failure of either party to insist upon strict performance of any of the provisions of the Terms and Conditions will not be deemed a waiver of any breach or default. Each of the parties represents that it has the authority to enter into and sign these Terms and Conditions. Any notice given to either party will be in writing and effective by transmission via facsimile and regular mail to the addresses indicated in the Credit Application or as advised in writing by the party. Westcon will be entitled to receive all costs, including attorneys fees and costs, incurred as a result of enforcement of any provision hereof or collection of any sum due from Customer. If any provision of these Terms and Conditions are unenforceable as a matter of law, all other provisions will remain in effect. Customer may not assign these Terms and Conditions without prior written approval from Westcon. Westcon will not be liable for any delay or failure in performance whatsoever due to acts of God, earthquakes, shortage of supplies, transportation difficulties, labor disputes, riots, war, fire, epidemics and similar occurrences. These Terms and Conditions constitute the entire agreement between the parties as to the Sale of Products and supersede all prior or current written or oral statements, representations, negotiations, agreements and understandings regarding the sale of Product. The Terms and Conditions may be amended or modified only in writing, signed by both parties. The customer has requested that these Terms and Conditions be drawn up in English. Le client a exigé que les présents termes et conditions soient rédigés en anglais
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