TRAPA Forest Products Ltd.
Terms and Conditions
1. BUYER ORDERS/INVOICES – Buyer’s orders are for the sole purpose of identifying the purchased goods and the requested delivery dates. No Buyer order will be binding on TRAPA Forest Products Ltd. (“TRAPA”) unless and until, as applicable: (a) TRAPA provides Buyer a printed acknowledgment of the order (an “Acknowledgment”); (b) TRAPA sends an invoice to Buyer for the order (an “Invoice”); or (c) TRAPA ships the goods being purchased under the order. Acknowledgments and Invoices, along with these Terms and Conditions, constitute the entire agreement between TRAPA and customer (“Buyer”) with respect to any and all goods purchased by Buyer from TRAPA, and supersede any terms appearing in Buyer’s purchase order which may be different or in addition to these Terms and Conditions and/or the terms and conditions of any Acknowledgment and/or Invoice. Any additional terms or different terms stated on or referenced on any Buyer purchase order shall have no force or effect and are hereby rejected by TRAPA unless specifically agreed to in writing by an authorized representative of TRAPA. Any representations, promises, warranties, or statements by any officer or agent of TRAPA that are not expressly contained in these Terms and Conditions or in an Acknowledgment or in an Invoice shall be given no force or effect. No waiver of these Terms and Conditions or any Acknowledgment or Invoice, or any part thereof, shall be effective unless in writing and signed by the waiving party. These Terms and Conditions and the terms and conditions of any Acknowledgment and/or Invoice shall not be modified, waived or amended by course of performance or course of dealing between the parties. Buyer may not cancel or terminate an order for convenience, except with TRAPA’s prior written consent and only then upon payment of reasonable termination charges. The Terms and Conditions set forth herein, and the terms and conditions set forth on the face of any Acknowledgment or Invoice, constitute a contract between the parties hereto and may not be added to, modified or altered in any way except by a written instrument signed by an authorized representative of TRAPA.
2. TERMS OF PAYMENT – Terms of payment shall be as set forth on the face of the applicable Acknowledgment and/or Invoice. Any and all term discounts allowed will be A.D.F. (After Deducting Freight). The price on all goods or services provided shall be the price stated in the Acknowledgment. Unless payment is accompanied by TRAPA’s invoice number, TRAPA, in its sole discretion, may apply all payments it receives to Buyer’s account in any manner it deems appropriate. Buyer shall not deduct or set off from the price invoiced to it by TRAPA the amount of any claim asserted by Buyer against TRAPA, unless such claim shall have been allowed, in writing, by an authorized representative of TRAPA. If Buyer fails to pay any sum owed when due, interest shall accrue on the past due balance at the rate of 1 ½ percent per month or the highest rate allowed by law, whichever is lower. TRAPA may set off any amount owed by TRAPA to Buyer against any amount owed by Buyer to TRAPA. Buyer shall pay all costs of collection incurred by TRAPA, including reasonable attorneys’ fees and expenses, should a default in payment or any other obligation of Buyer occur (including, without limitation, fees and costs incurred in any bankruptcy or similar action or on appeal).
3. GOVERNING LAW – All issues concerning the performance or interpretation of these Terms and Conditions (and any Invoice or Acknowledgment) shall be governed by the laws of the Province of British Columbia and applicable federal laws of Canada.
4. TAXES – All sales tax, excise taxes, or other forms of taxes levied against this transaction shall be paid by Buyer over and above all other sums Buyer is or may become obligated to pay.
5. LIMITED WARRANTIES; LIMITATIONS OF LIABILITY –
(a) TRAPA warrants to Buyer only that the goods to be supplied will, at time of Delivery by TRAPA pursuant to Section 6 below, conform to the description, grade and condition of the goods indicated on the face of TRAPA’s Invoice or Acknowledgment. TRAPA will have no responsibility under the foregoing warranty in the event that the goods: (i) are improperly handled after Delivery by TRAPA pursuant to Section 6 below; (ii) are otherwise improperly installed or maintained (such as, without limitation, having been exposed to extreme temperatures or atmospheric conditions); or (iii) are modified or altered in any way (including but not limited to, being used or incorporated into any structure, building or product). In the event of any breach of the foregoing warranty, Buyer acknowledges and agrees that TRAPA’s sole and exclusive liability and Buyer’s sole and exclusive remedy (whether in contract, tort or otherwise) shall be, at TRAPA’s option, to repair those goods which TRAPA’s examination shall disclose to its satisfaction do not conform to the above warranty, or the replacement thereof with conforming goods. Buyer agrees that TRAPA will have a reasonable period of time to repair or replace any non-conforming goods. No action for any breach of warranty shall be brought more than one (1) year after delivery. The above warranty runs only to Buyer and is not intended to, and does not run to, any subsequent buyer, nor may it be transferred to any other person or entity, unless otherwise specifically agreed to by TRAPA in writing. TRAPA will have the right to investigate all warranty claims and Buyer agrees to reasonably cooperate with any such investigation. If TRAPA determines, in its reasonable discretion, that a warranty claim is proper, it will repair or replace the goods pursuant to its standard warranty claims procedure. Buyer agrees that all goods returned to TRAPA pursuant to a warranty claim will become TRAPA’s property. “Delivery” as used in this Section 5(a) means the performance by TRAPA of its delivery obligations: (1) as set forth in Section 6 below; or (2) as otherwise set forth in the applicable Acknowledgment or Invoice.
(b) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 5 ARE NOT TRANSFERABLE AND MAY NOT BE ASSIGNED. THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 5 ARE THE EXCLUSIVE WARRANTIES PROVIDED BY TRAPA. ACCORDINGLY, EXCEPT AS OTHERWISE SET FORTH IN SECTION 5(a) ABOVE, THE GOODS ARE SUPPLIED “AS IS” AND WITH ALL FAULTS. TRAPA DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IF ANY APPLICABLE LAW OR STATUTE OF A JURISDICTION CONFLICTS WITH THIS SECTION 5, THEN THIS SECTION 5 SHALL BE MODIFIED ONLY TO THE EXTENT NECESSARY TO COMPLY WITH ANY SUCH LAW OR STATUTE AND AVOID THE CONFLICT.
(c) IN NO EVENT SHALL TRAPA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, FOR INJURIES TO PERSONS OR PROPERTY, FOR COMMERCIAL LOSSES OR FOR ANY OTHER LOSS OR DAMAGE (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, OR GOODWILL), EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS.
6. DELIVERY –
(a) Terms. TRAPA will use commercially reasonable efforts to affect delivery of the goods at the desired time, but delivery dates are not guaranteed. In no event will TRAPA be liable for any losses, damages, or penalties resulting from any delay in shipment or delivery of the goods. Any increase or decrease in duties and fees, tariff freight rates, or demurrage, after the date of order shall be for the account of the Buyer. The terms of the sale shall be specified in the Acknowledgment and those terms shall control. In the event that terms are not specified in the Acknowledgment, the terms of sale for that order shall be as follows: the shipment will be FOB (Incoterms 2020) TRAPA’s designated shipping point, with TRAPA being responsible for loading costs. When shipped in accordance with the preceding sentence, title and risk of loss or damage to the goods ordered by Buyer will pass to Buyer upon the goods being loaded with the carrier at the shipping point (provided that, Buyer will remain obligated to pay in full the amount of the Invoice).
(b) Insurance. Unless the terms in the Acknowledgment state otherwise, Buyer is solely responsible for obtaining insurance covering the goods during shipment, at its expense.
(c) Shipping. TRAPA may, as set forth in the Acknowledgment or Invoice, either prepay the shipping costs and invoice the charges to Buyer, or where the goods are sold on a delivered cost basis, pay the shipping costs on its own. In either scenario, TRAPA reserves the right to select the carrier, and Buyer agrees to provide all information necessary to facilitate delivery to the end destination. Unless the terms of the Acknowledgment state otherwise, Buyer acknowledges and agrees that TRAPA is not responsible for the goods (including the delivery thereof) once the shipment has been loaded with the carrier, and once loaded, TRAPA’s delivery obligations shall be deemed fully satisfied. Notwithstanding the preceding sentence, TRAPA will, however, use commercially reasonable efforts to: (i) assist the carrier in the delivery of the goods; and (ii) in the event of loss or damage to the goods during shipment or a delay in delivery, provide reasonable assistance to Buyer in connection with filing a claim with the carrier. In the event TRAPA assists Buyer in connection with filing a claim with the carrier pursuant to subsection (ii) of the preceding sentence, Buyer acknowledges and agrees that Buyer remains ultimately responsible for any claim made by Buyer against the carrier, that TRAPA has no control over any decision by the carrier to reimburse or refund any amounts claimed to be owed by the carrier to Buyer, and that, except for TRAPA’s obligation to provide reasonable assistance to Buyer in connection with the claim, TRAPA shall have no responsibility or liability in connection with the claim and/or any dispute between TRAPA and the carrier.
(d) Importing. Unless the parties agree otherwise, TRAPA shall be the importer of record on all international shipments. Nothing in this provision changes the rights and obligations of the parties as set forth in Section 6(a) above.
7. DELAYS – In the event that TRAPA is unable to ship product on the date agreed to by the parties due to events beyond its control, including but not limited to natural disasters, labor disputes, material shortages, government action, or transportation issues, TRAPA may find alternate supply or cancel Buyer’s order, at its discretion, without incurring any penalty or liability. TRAPA may allocate supply among customers at its sole discretion. If TRAPA has credible reason to believe that Buyer is unable to perform its obligations, then TRAPA may withhold or cancel an order at its sole discretion.
8. CLAIMS – Claims for shortages or incorrect or damaged goods must be made in writing to TRAPA within five (5) days after Buyer receives the applicable shipment. Failure to give such notice shall constitute an unqualified acceptance of the goods and the waiver by Buyer of all claims for such shortages or incorrect goods. All claims shall be handled in conformity with the current standard grading and dressing rules of the applicable grading or inspection bureau. All material is sold under the terms and conditions of quotation and sale, or conditions of sale of the applicable association at the time of Buyer’s order.
9. ACCEPTANCE OF TERMS AND CONDITIONS – In the event Buyer fails to expressly reject these Terms and Conditions in writing within ten (10) days from the earlier of (a) the date these Terms and Conditions are mailed to Buyer, (b) the date these Terms or Conditions or other instrument incorporating these Terms and Conditions by reference is transmitted to Buyer by email or facsimile machine, or (c) the date on which the Buyer otherwise pays any Invoice or accepts any goods delivered under these Terms and Conditions, Buyer will be deemed to have irrevocably accepted these Terms and Conditions for any and all purchases made by Buyer from TRAPA hereunder. Buyer’s purchase of goods from TRAPA shall be strictly upon the Terms and Conditions stated herein, unless TRAPA gives its prior written consent to differing terms and conditions.
