PEP CORP – GENERAL TERMS OF SALE
These general terms of sale (the "General Terms of Sale") apply to any purchase of goods and services ("Parts") by a customer (“You”) from PEP CORP, having its place of business at 400-1880 Assumption St. Windsor Ontario, Canada ("PEP").
Last modified: 1 July, 2022
- When You place an Order with PEP for Parts (an “Order”), You accept and are bound to these General Terms of Sale. Do not place an order if you do not accept these General Terms of Sale.
- If there should arise a conflict between provisions contained in the Order and these General Terms of Sale, then the General Terms of Sale will prevail. PEP will not be bound by any addition, alteration or substitution of these General Terms of Sale, even if included within an Order, unless explicitly accepted in writing by PEP, and no preprinted terms within an Order will bind PEP. All of such nonbinding terms are hereby rejected by both parties.
- When these Terms of Sale are used in a situation in which You are a consumer and not a professional customer, some terms and conditions will not apply to You. In these situations, these General Terms of Sale are applicable to the extent and degree permitted by applicable consumer law. Your rights under applicable consumer laws are not limited or affected by these General Terms of Sale. Because Your Orders are made to order, no rights, statutory or otherwise, of withdrawal or cancellation are applicable or exercisable.
- It is Your responsibility to ensure that all information provided in a quotation request or Order is accurate and complete and that the specifications for Your Order comply with any instructions of PEP and take into account all manufacturing and other limitations as specified by PEP on its website, www.pepcorp.ca, or as otherwise made available to You.
- Any Orders that You submit are requests and do not bind PEP in any way. PEP is under no obligation to accept an Order and may reject any Order, at its sole discretion, before it has accepted the Order.
- Any Order accepted by PEP constitutes Your binding commitment to purchase the Parts described therein, and Orders are deemed accepted by PEP only if confirmed by PEP in writing, or by PEP’s fulfillment of the Order. PEP’s failure to object to provisions contained in any Order shall not be construed as a waiver of these General Terms of Sale nor an acceptance of any such provisions. PEP may perform a credit check on You and require a prepayment by credit card or other assurance of payment prior to acceptance. Any Order is binding upon PEP on the condition precedent that there are sufficient resources available to PEP to complete Your Order within the stated timelines and that Your Order was not accepted on the basis of incorrect information, including but not limited to information regarding pricing and specifications. If this condition precedent is not met, PEP is entitled to reject or cancel Your Order, in which case PEP shall refund any payment already received.
- PEP is permitted to apply limited deviations with regard to color, quantity, size, or (shore) hardness of Parts, unless PEP specifically agrees to the contrary in writing.
- Any changes to an Order after it has been made is subject to PEP’s acceptance and may be subject to additional charges.
- Once in production, because the Parts are produced specifically for You and based on Your specifications (made to order), it is not possible for You to cancel Your Order.
- All prices stated by PEP exclude Harmonized Sales Tax, any other value added tax, or any other taxes, governmental fees, assessments or duties, unless expressly stated otherwise herein. It is Your responsibility to pay all taxes associated with the Order (other than taxes based on PEP’ income). Without limiting the foregoing, You must pay all applicable taxes that PEP charges You in addition to the prices quoted.
- In the event of changes to cost price factors, PEP reserves the right to charge such costs to You.
- If PEP agrees to a request of special packaging or shipping instructions, then You shall be liable for any additional charges PEP incurs as a consequence thereof, as PEP may indicate.
- Unless PEP requires prepayment from You, You must pay all invoices within 30 days from the date of invoice.
- PEP may invoice parts of any Order separately.
- For all Orders that include tooling, PEP may require You to pay the cost of tooling upfront.
- PEP may require an advance payment before it fulfils Your Order. PEP is not responsible for any delay in carrying out Your Order caused by Your delay in making payments.
- The amounts due shall, unless otherwise agreed, be paid by credit card, Cheque, bank transfer, or through online payment portal, as indicated by PEP. All costs related to the method of payment shall be Your responsibility.
- All amounts due under these General Terms of Sale to be paid by You to PEP shall be paid in full and without any deduction and You shall not be entitled to any right of setoff. PEP shall be entitled to setoff any amount due by PEP to You against amounts due by You to PEP.
- If any amount due is not made when it becomes due and payable, a late payment interest of two percent (2%) per month, or the highest amount permitted by applicable law, whichever is less, shall be due and payable with respect to such amount to be calculated from the time such amount became due until the time such amount is paid in full.
- PEP may, in the event of any overdue payment, suspend any delivery of Parts to You and prohibit You from placing any future orders until You pay all outstanding amounts.
5. Specifications of Parts and Tooling
- It is Your responsibility to provide PEP with correct and complete 3D CAD data and/or 2D technical drawings to produce the Parts and tooling. You must upload all relevant files required for the production of Your Parts and tooling to the quote page, or, in the event of a specific or special Order, provide PEP Your relevant files in the manner that was agreed upon. PEP has no obligation to review any of the specifications, data or drawings You provide.
- PEP uses the 3D CAD data and, 2D technical drawings as may be provided by You, to generate Parts and tooling. If 2D technical drawings are provided, 2D technical drawings will take precedence during production if these have been provided before we accepted Your order or unless otherwise agreed. PEP is not responsible for discrepancies between 3D CAD data and technical drawings.
- It is Your responsibility to provide a technical drawing with the relevant specifications, if an Order includes threads or specific tolerances, to ensure to indicate this in the quotation request and to check if this is reflected correctly in the Order.
- PEP will not be responsible for incorrectly designed Parts, Parts that do not assemble correctly, Parts with thick cross-sections that produce warp, or incorrectly provided CAD data or technical drawings.
- PEP is not responsible for any material selection and material suitability for Your application. PEP is similarly not responsible for the fit or assembly of Parts, unless specifically agreed upon in writing.
6. Tooling Ownership and Storage
- All custom tooling for Your Parts shall become Your property; however, reusable proprietary components remain PEP`s property. All custom tooling will remain at PEP’s production facility.
- As long as PEP is making Parts for You at PEP’s production facilities, PEP will guarantee Your tooling for the agreed upon tool life (as stated in the Order). Notwithstanding Section 6.1 or Section 6.3, PEP will, in its sole discretion, repair or replace worn or damaged tooling at PEP’s expense for the agreed upon tool life.
- After a two-year period of inactivity of the tooling, PEP may, in its sole discretion, destroy the tooling.
7. Delivery, Inspection, Acceptance, Complaints and Retention of Title
- Shipments are sent by the commercial carrier selected by PEP. PEP will pre-pay and add delivery costs to the invoice as a convenience and courtesy.
- PEP will use commercially reasonable efforts to ship an Order on the agreed upon dates; however, shipping or delivery dates are estimates only. PEP is not liable for any delays in the delivery or shipment of Orders and PEP’s failure to meet a shipping date or delivery period shall not constitute a breach of these General Terms of Sale.
- PEP shall be entitled to suspend its delivery obligations under an Order or these General Terms of Sale in the event there are, in PEP’s sole discretion, reasonable and objective grounds to doubt whether You are able or willing to fully and timely fulfil Your payment obligations or whether You fully comply with the any other terms and conditions of these General Terms of Sale.
- You must inspect the Parts immediately upon receipt and notify PEP within five (5) working days of the date of delivery of the Parts, in writing, if You believe any part of an Order is missing, defective, wrong or damaged. Unless You have so notified PEP, specifying the nature of what is missing, wrong, or damaged within five (5) working days of delivery, the Parts will be deemed accepted, non- returnable and non- refundable.
- If You choose to alter the Parts in any way without the prior written consent thereto, after You receive Your Order, then the Parts will be deemed to be accepted by You, non-refundable and non-returnable.
- If You wish to return defective, wrong or damaged Parts, You must comply with Section 7.5 and You must return these to PEP within ten (10) working days from the time the Order was delivered, unless otherwise agreed upon in writing with PEP. Any Parts that You return to PEP after the lapse of this period of time will not be processed or refunded.
- PEP shall retain the ownership to the Parts until You have paid all amounts related to the delivered Parts in full, including any interests, collection costs or other amounts due with respect to such Parts, at which time title to the Parts will pass to you.
8. Intellectual property rights
By placing an Order, You grant to PEP a royalty-free, completely paid-up, non-exclusive, transferable, worldwide, license, that may be sub-licensed, to use, copy, modify, distribute and display the data (including 3D CAD Data), drawings, documentation and specifications You provide for manufacturing of the Parts as necessary to produce, sell and ship the Parts to You, as well as to improve our products and services.
9. Your representations
- You represent and warrant that (i) You have the full right and authority to provide us with all data (including 3D CAD data), documentation, drawings and specifications, and (ii) You are authorized to grant the license referred to in Section 9 , and (iii) the Order, and the production, shipping, sale and use of the Parts or tooling by us, does not (a) violate, misappropriate or infringe any intellectual party rights (including but not limited to any copyright, patent, design right, trademark, trade secret or any other proprietary rights) of any third party rights or (b) violate any applicable laws.
- You represent and warrant that You are authorized to place the Order and that You have the authority and ability to complete legally binding agreements. Only individuals who are 18 years or older and who can form legally binding contracts, under applicable law, may place an order with PEP.
- Without limiting Your representations and warranties in Section 9.2, You further represent and warrant that (i) Your Order does not contain any parts of firearms or other weapons, and that Your Order, and (ii) the production, shipping, sale and use of the Parts or tooling by us in response to Your Order, does not violate any export control laws or regulations, and (iii) Your Order does not contain any critical (functional) parts for aerospace, watercraft, offshore, automotive and or medical applications.
- You also represent and warrant that You will use Parts in strict compliance with all applicable provincial, federal and local laws and requirements. You represent and warrant that you will not, directly or indirectly, (1) sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from PEP to any destination, entity, or person prohibited by the laws or regulations of Canada (2) use Parts for any use prohibited by the laws or regulations of Canada and/or your local jurisdiction, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
10. Force Majeure
- PEP is not liable for any delay or failure in delivery or performance of any of its duties under these General Terms of Sale due to events beyond its reasonable control or acts or omissions or any other occurrence commonly known as force majeure, including but not limited to war, riots, acts of terrorism, acts of God, nature disasters, embargoes, strikes, or other concerted acts of workers, casualties or accidents, failure by any PEP’ supplier to meet their obligations or any other causes or circumstances that prevent or hinder the manufacture or delivery of the Parts.
- PEP may suspend performance under an Order for so long as such performance is delayed by such occurrence or cancel the Order at its sole discretion, in which case PEP is not liable for any resulting damages.
- Nothing in this Section 11 will excuse You from Your payment obligations for amounts due and payable under an Order.
11. DISCLAIMER OF WARRANTIES
EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 2 AND 3, SELLER MAKES NO REPRESENTATION, CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY CONDITION OR WARRANTY OF (a) MERCHANTABILITY, (b) FITNESS FOR A PARTICULAR PURPOSE; (c) TITLE; OR (d) AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. BY ACCEPTING THIS BILL OF SALE, BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION, CONDITION OR WARRANTY MADE BY SELLER, OR ANY OTHER PERSON ON SELLER’S BEHALF.
12. LIMITATION OF LIABILITY
IN NO EVENT SHALL THE SELLER BE LIABLE UNDER THIS AGREEMENT TO THE BUYER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING ANY DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF USE, DEATH, INJURY, BODILY HARM, REVENUE OR PROFIT, COST OF CAPITAL, LOSS OF BUSINESS OPPORTUNITY, LOSS OF GOODWILL, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), ANY OTHER THEORY OF LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The BUYERS sole remedy for a breach of these terms shall be the receipt of a replacement part of parts which meet the Buyer’s Specifications in an Order.
- You agree to indemnify and hold harmless PEP and its affiliates and their
respective employees, agents, representatives and (sub)contractors from and against
any and all loss, liability, penalty, third party claims, damages, costs and other
expenses (including reasonable attorneys’ fees and court costs and litigation
expenses) arising out of or relating to:
- Your breach of the Order or these General Terms of Sale;
- Your acts or omissions relating to PEP`s performance under an Order or these General Terms of Sale;
- any and all use, distribution and/or sale of Parts; and
- any claims of third parties (including government authorities) arising out of an Order or these General Terms of Sale or the production, shipping or sale of the Parts and/or your 3D CAD data and/or 2D technical drawings, including but not limited to a claim that the use of such data and technical drawings and/or the production, shipping or sale of Parts violates any applicable law or the intellectual property or other rights of a third party.
- PEP shall not disclose, and shall ensure that its employees and (sub)contractors shall not disclose, any and all data (including 3D CAD data), documentation, drawings and specifications that You provide, other than as reasonably necessary to carry out Your Order. This restriction will not apply in the event of a legal obligation or duty to disclose the information, or when the information is or becomes (publicly) known or is independently developed by PEP, its employees or its contractors without the use of such information, or if the information is disclosed to PEP by a third party.
- You are prohibited from using PEP trademarks, trade names or any other indications in relation to the Parts, or to publicly make any reference to PEP, whether in press releases, advertisements, sales literature or otherwise, except with PEP prior written consent.
- Without prejudicing any other rights PEP may have under these General Terms of
Sale or the applicable laws, PEP has the right to immediately terminate Your Order in
whole or in part upon written notice if:
- You are declared bankrupt, are granted a (temporary) moratorium on payment of Your debts, if You have filed a petition for bankruptcy, or if a receiver is appointed for You,
- if You go into liquidation or there is a threat of suspension of payments,
- if You cease, or threaten to cease, to carry on Your business, or
- if You breach these General Terms of Sale.
- The provisions of these General Terms of Sale shall be severable, and if any provision of the Agreement is found to be legally unenforceable, such unenforceability shall not prevent the enforcement of any other provision of these General Terms of Sale.
- These General Terms of Sale shall be construed as if both parties drafted it jointly, and shall not be construed against either party as principal drafter.
- The failure of a party to exercise or enforce any right under these General Terms of Sale shall not be deemed to be a waiver of that right, nor operate to bar the exercise or enforcement of that right at any time thereafter.
- These General Terms of Sale are binding upon the parties’ successors, heirs and assigns.
- Notices. All notices sent under this Agreement shall be in writing and delivered by prepaid commercial courier. Notices to PEP shall be sent PEP CORPORATION at 400-1880 Assumption St, Windsor ON N8Y 1C4, and notices to You shall be sent to the contact person provided by You in Your Order. Notices are deemed delivered upon receipt.
- All provisions within these General Terms of Sale which by their nature are intended, whether express or implied, to survive the termination or the expiration of an Order, including but not limited to Your payment obligations and Sections 7, 9 , 10, 12, 13, 14, 15, 17 and 18 shall survive.
- These General Terms of Sale may not be modified, except by written agreement signed by both parties, except that PEP reserves the right to change these General Terms of Sale at any time, in which case the amended General Terms of Sale will apply to any Orders placed after the new General Terms of Sale enter into effect.
- The parties’ relationship is solely that of independent contractors, and neither party, nor its employees, agents or representatives shall be considered employees, agents, partners, franchisees, owners, joint ventures or representatives of the other party.
17. Governing Law and Exclusive Forum
- The laws of the Province of Ontario apply to any disputes arising out of or relating to these General Terms of Sale, without regard to conflict of laws principles. The UN Convention on International Sale of Goods does not apply.
- The parties agree that if a legal suit or proceeding is brought in connection to an Order, these General Terms of Sale or the relationship between PEP and You, on any basis whatsoever, then such suit or proceeding shall be brought in the Superior Court of Windsor, Ontario, and the parties shall submit to the exclusive jurisdiction of such courts and waive any and all jurisdictional, venue and inconvenient forum objections to the choice of the Superior Court of Windsor, Ontario.