Applifast Inc. Terms and Conditions of Sale
For the purpose of these Terms and Conditions, the following definitions shall apply:
“Accessories” means any and all accessories, attachments and other terms furnished to the Customer for use with the Equipment.
“Applifast” means Applifast Inc. at 251 Cree Crescent, Winnipeg MB R3J 3X4.
“Customer” means the person, company, organization, etc. noted as “Customer” on this form, and anyone who receives the Goods or Services.
“Equipment” means, individually and collectively, the items of Equipment described on our Invoice, Rental Agreement, etc. and shall not include all Accessories delivered to the Customer.
“Goods” means any physical good provided by Applifast to the Customer, including any Equipment or Accessory.
“Services” means any service provided to the Customer, including those listed on this form and including any consultation services or repair or maintenance service.
These conditions supersede any other terms & conditions which Applifast has set in the past. All orders are accepted only upon and subject to these Terms & Conditions. These Terms & Conditions shall prevail over any terms & conditions set by the Customer whether contained in the Customer’s purchase order or otherwise. No quotation, terms, condition, promise or representation of any kind, whether made by Applifast or any representative of Applifast shall be legally binding on Applifast unless such quotation, term, condition, promise or representation is agreed in writing by Applifast. No amendment or modification to these Terms & Conditions shall be binding upon Applifast unless agreed to in writing by a duly authorized officer of Applifast. The invalidity or unenforceability of any provision of these Terms & Conditions shall not affect the validity or enforceability of its other provisions. No course of dealing, course of performance or usage of trade shall be considered in the interpretation or enforcement of these Terms & Conditions. Any clerical errors in computations, keying or otherwise in any Catalogue, Price list, Quotation, Offer, Acceptance, Invoice, Credit Note, Packing Slip, Rental Agreement, Specification, etc. shall be subject to correction at any time - all errors and omissions excepted.
Cost Variation and Quotations
Quotations are given on the basis of immediate acceptance and are subject to withdrawals or revisions. Unless otherwise agreed in writing, Applifast shall be at liberty to revise quotations or charges with or without giving notice including, without limitation, in the event of changes occurring in currency exchange rates, fuel surcharges, freight rates, insurance premiums or any other charges applicable to the Goods or Services which are beyond Applifast’s control.
All prices associated for goods or services are expressed in Canadian funds.
All prices are subject to the addition of all applicable taxes, federal, provincial, state, municipal or otherwise, including GST and PST, as applicable. The Customer will pay to Applifast, in addition to the total purchase/rental price, the amount payable by Applifast for such taxes including GST and/or PST on the taxable supply made by Applifast under this agreement. Applifast shall deliver to the Customer a tax invoice for the supply or rental of goods in a form which complies with the GST and/or PST regulations.
All amounts are due when invoiced. Credit terms (30 day) are available on approved accounts only and will usually only be available to customers whose monthly spend for Goods or Services exceeds $500.00 per month. Any Customer who has a credit account shall make payment within 30 days of the invoice date unless otherwise authorized by Applifast in writing. Interest will be payable at 2% per month (24% per annum) or the maximum amount allowed by applicable law, whichever is less, on all invoices which are more than 30 days in arrears. Customer shall be responsible for all costs of collection including all legal costs and legal fees on a solicitor and own client basis. Applifast reserves the right to refuse to ship any Good or provide any Service unless and until paid in advance. Payment may be made using Visa or MasterCard either in person or over the telephone - we recommend this method of payment for goods requiring immediate shipment; cheque payment is also accepted but shipping may be delayed.
Risk and Property
The risk in the Goods sold shall pass to the Customer when the Goods are available for delivery. This shall also apply to any partial delivery of Goods. Applifast reserves the right to ship all Goods in more than one shipment, at its sole discretion. All shipping dates are approximate and not guaranteed. If delivery or performance of Goods or Services is delayed due to any circumstances beyond the control of Applifast, the risk passes to the Customer on the day when the Goods were first ready for shipping from Applifast and this day is to be regarded as the date of delivery for purposes of invoice payment. Notwithstanding the foregoing, title in the Goods remains with Applifast until full payment has been received by Applifast. Applifast may at any time recover the Goods if they are in the Customer’s possession and resell the Goods if any payment owed by the Customer on any account is overdue or if Applifast considers the amount outstanding from the Customer on the general statement of account between the parties is in excess of the credit limit. Applifast reserves the right to discontinue any Service, without notice, at any time, if payment for all Services has not been received by Applifast.
Claims, Liabilities and Warranties
Claims arising from damage, delay or partial loss of Goods in transit must be made in writing to Applifast and to their carrier (if applicable) within three (3) days of delivery of the Goods. Applifast warrants that all Goods shipped to the Customer conform with the description of Goods on Applifast’s Invoice, Packing List or Rental Agreement. All other warranties expressed or implied are hereby excluded - in particular, Applifast makes no guarantee respecting the merchantability of the goods or their fitness or suitability for any particular purpose or use. There is no guarantee that the Equipment is suited for the Customer’s intended use or that it is free from defects. In no event shall Applifast be liable for incidental or consequential loss or damages including (but not limited to) the loss of profit or loss of use, whether arising from the use or inability to use any of the goods. Customer’s exclusive remedy for any cause of action arising out of this Agreement or with respect to the Goods or Services shall be limited at Applifast’s option to: (a) replacement of the nonconforming portion of the Good or redelivery of the Service, or (b) refund of the portion of the purchase price attributable to such nonconforming Good or Service. Any residual value in such Good or Service shall be the property of Applifast. The foregoing shall be customer’s exclusive remedy for any claims against Applifast related to the sale of goods or performance of services, including (without limitation) performance, warranty, quantity, price, in transit loss or damage. Failure by customer to follow the claims procedures in any respect shall constitute an unqualified acceptance of the products and a waiver by customer of all claims. No cause of action which accrued more than one (1) year prior to the institution of a legal proceeding alleging such cause of action may be asserted by either party against the other.
Customer shall indemnify, defend and hold harmless Applifast, its affiliates, subsidiaries, subcontractors and their respective officers, directors, members, employees, representatives and agents (collectively, the “Indemnitees”) from and against, any and all claims, suits, damages, losses, liabilities, costs and expenses (including legal expenses and costs on a solicitor and his own client basis) (hereinafter, “Claims”) arising out of or relating to: (a) Customer’s breach of any material provision of these Terms and Conditions; (b) Customer’s handling, use, processing, alteration, distribution, sale or marketing of the Goods or Services; or (c) any other action or inaction with regard to the Goods or Services after the delivery thereof to Customer. This indemnification applies notwithstanding the fact that third parties or any of the Indemnitees may be partially responsible for the events giving rise to the claim; provided, that the Customer shall not be obligated to indemnify Indemnitees against the Indemnitees’ sole negligence or willful misconduct.
Return of Goods
The return of Goods delivered to the Customer is at the sole discretion of Applifast and Goods may not be returned before specific written authorization has been given by Applifast. The Customer must first make contact with a member of Applifast’s sales team who may issue a RGA Form (Return Goods Authorization Form) if deemed appropriate. A Return Goods Authorization Form will be faxed or emailed to the Customer for completion and this must then be fully completed and faxed or emailed back to Applifast before Applifast considers the request. If authorization is given by Applifast, an RGA Number will be faxed or emailed back to the Customer with a copy of the RGA Form bearing the RGA Number. Such RGA Form, or a copy thereof, shall then be included with the Goods being returned. All Goods authorized for return shall be returned freight prepaid to Applifast. No credit will be allowed for outbound or return shipping and handling charges. Credit will be given on authorized returns at the full purchase price less a 20% handling/restocking charge (subject to a $25.00 minimum charge). Credits are subject to goods being returned in ‘new and saleable’ condition. Applifast reserves the right of final inspection on returned Goods to ensure that they are in ‘new and saleable’ condition prior to approval of any credit. The determination of whether or not a Good is in ‘new and saleable’ condition shall be at Applifast’s sole discretion. Please note that abrasive products are vulnerable to changes in humidity and temperature and are therefore considered “non-returnable”. Non-standard, Special Order or Obsolete merchandise is not returnable for any reason. No returns will be processed wit out a copy of the approved RGA Form and this condition is strictly enforced. Under no circumstances shall arbitrary returns or debits be accepted.
While every reasonable effort will be made by Applifast to provide Goods and Services in accordance with these Terms & Conditions, Applifast will not be responsible for a failure in service, supply, or loss to the Customer as a result of War, Fire, Flood, Drought, Strike, Labour Troubles, Accident, Riot, Act of Government, Act of God, failures in manufacturing, delivery, or performance of any supplier to Applifast, or any contingency beyond Applifast’s control. Applifast may, at its option, and without liability, cancel all or any portion of this Agreement. Any such delay does not entitle the Customer to reject the Goods or Services or withhold payment of any part of an amount owing to Applifast.
If any of these Terms & Conditions are unlawful or invalid by reason of any applicable law, regulation, or ordinance, statutory or otherwise, then such provision shall be severed from the rest of these Terms & Conditions which shall remain valid and binding on all parties. These Terms & Conditions of Sale are deemed to be made in the Province of Manitoba and shall be governed and construed in accordance with the laws of the Province of Manitoba and the federal laws of Canada applicable therein without regard to conflict of laws principles. The parties hereby attorn to the exclusive jurisdiction of the courts of the Province of Manitoba and hereby agree to submit to the personal and exclusive jurisdiction and venue of these courts.