1. Content and conclusion of the Agreement
Backassure.com, its affiliates or subsidiaries (“Backassure”) hereby agrees to provide, the goods or services (the “Supply”) to the purchaser (“Purchaser”) as provided for in a purchase order, online order, email or other communication confirming an order (“Confirmation of Purchase”).The Confirmation of Purchase and the present terms and conditions as well as any document referred to therein or attached thereto, between the parties, shall constitute the entire agreement between the parties (the “Agreement”) and supersede any verbal agreement or document, prior or concomitant, that may have existed in the context of the negotiations prior to the issuance of an order. The present terms and conditions shall also apply to any subsequent orders, between Backassure.com and a Purchaser even when these have not been specifically agreed to again. Deviating terms and conditions or counter-confirmations of the purchaser or verbal agreements are invalid. Modifications to these terms and conditions are only valid with Backassure.com’s written confirmation. Any offer or proposal made by Backassure.com are subject to confirmation by the Purchaser shall be non-binding until a Confirmation of Purchase.
2. Binding Agreement
Purchaser’s order shall be deemed accepted subject exclusively to this Agreement upon the earliest of Backassure.com’s written acknowledgement or statement of intent to furnish the Supply, or the furnishing or shipment thereof, or the commencement of performance by Backassure.com pursuant to this order.
Except as expressly provided on a Confirmation of Purchase, prices are fixed and firm. Payment terms shall be those specified on an invoice, purchase order or Confirmation of Purchase. All quoted prices are based on the current exchange rates, tariffs and costs of manufacture. Unless otherwise stated in the quotation, quoted prices are subject to change by Backassure.com with or without notice until Confirmation of Purchase. Prices are subject to correction for error.
4. Delivery and performance
Delivery schedules are approximate and are based on prevailing market conditions applicable respectively at the time of Confirmation of Purchase. Unless specifically indicated in writing by Backassure.com, any proposed delivery times by a third party are described as estimated and are non-binding. If by reason of an event of Force Majeure Backassure.com is obliged to suspend the Supply, the performance of this Agreement shall be suspended throughout the period during which it is unable to ensure deliveries and such suspension shall not be deemed as a breach of this Agreement. As soon as the effect of the obstacle arising from the Force Majeure has ended, the obligations of this Agreement shall once again come into effect and shall remain in force throughout the remainder of the duration thereof. In the event that the period of suspension exceeds three (3) months, either party may terminate this Agreement forthwith and each party shall not be obliged to compensate the other party in any way. At Backassure.com’s discretion it may withdraw fully or partially from the unfulfilled part of the Agreement. Backassure.com shall not be responsible or liable for any loss or damage incurred by Purchaser herein resulting from Force Majeure. “Force Majeure” shall mean any event or condition, not existing as of the date of entering of this Agreement, not reasonably foreseeable as of such date and not reasonably within the control of either party, which prevents in whole or in material part the performance by one of the parties of its obligations hereunder or which renders the performance of such obligations so difficult or costly as to make such performance commercially unreasonable. Without limiting the foregoing, the following shall constitute events or conditions of Force Majeure: acts of State or governmental action, fire, earthquake, hurricane, war, flood, acts of terrorism, explosion and unavailability of raw material, transportation strikes and delays, strikes or partial or complete work stoppage or lock-outs in industries or businesses operated by third parties concerned with the manufacture of the Backassure.com products.
5. Changes and cancellation
Orders accepted by Backassure.com are not subject to changes or cancellation by Purchaser, except with Backassure.com’s written consent. In such cases where Backassure.com authorizes changes or cancellation, Backassure.com reserves the right to charge Purchaser with reasonable costs based upon expenses already incurred and commitments made Backassure.com, including, without limitation, any labour done, material purchased and also including Backassure.com’s usual overhead and reasonable profit and cancellation charges from Backassure.com’s suppliers.
6. Retention of title
The Supply shall remain the property of Backassure.com until full payment of all outstanding amounts, which include claims which may arise for whatever legal reason. In the event that the Purchaser is in default of payment, Backassure.com shall be entitled to reclaim the Supply, without this constituting a withdrawal from this Agreement or a waiver of our claims until such claims are satisfied. Moreover, Backassure.com reserves the right to set-off and compensate against any amounts due or payable by the Purchaser.
7. Warranty and liability
The Supply sold hereunder is covered by a warranty against defects in material and workmanship provided the Supply is subjected to normal use and service. The applicable warranty period is twenty-four (24) months from the date on which the Supply has received the Supply. The obligation under this warranty is limited to the repair or replacement, at Backassure.com’s option, of defective parts provided that prompt notice of any defect is given by Purchaser to Backassure.com in writing within the applicable warranty period and that upon the Purchaser’s return of the defective item to Backassure.com or, if designated by Backassure.com, to another location an inspection thereof shall reveal to Backassure.com’s satisfaction that Purchaser’s claim is valid under the terms of this warranty. Backassure.com makes no warranty other than the one set forth herein. All other warranties, legal, expressed or implied, including but not limited to any expressed or implied warranty of merchantability, of fitness for the intended use thereof or against infringement are hereby expressly excluded. The applicable warranty ceases to be effective if the Supply is altered or repaired other than by persons authorized or approved by Backassure.com to perform such work. Repairs or replacement deliveries do not interrupt or prolong the term of the warranty.
Backassure.com shall not be liable for and shall be held harmless by Purchaser from any damage, losses or claims of whatever kind, contractual or delictual, consequential or incidental, direct or indirect, arising out of, in connection with or resulting from the sale governed hereby or the Supply and any and all claims, actions, suits, and proceedings which may be instituted in respect to the foregoing.
No Supply may be returned to Backassure.com without Backassure.com’s prior written permission. Backassure.com reserves the right to decline all returns or to accept them subject to a handling/restocking charge. Even after Backassure.com has authorized the return of goods for credit, Backassure.com reserves the right to adjust the amount of any credit given to Purchaser on return of the goods based on the conditions of the goods on arrival in Backassure.com’s warehouse. Credit for returned goods will be issued to Purchaser only where such goods are returned by Purchaser and not by any subsequent owner of the goods. Goods will be considered for return only if they are in their original condition and packaging.
9. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the Province of Quebec and the laws of Canada applicable therein. Each party hereto attorns to the exclusive jurisdiction of the Courts of the Province of Quebec.
If any of the provisions contained in this Agreement is found to be invalid or unenforceable, such provision must, when possible, be interpreted, limited or, if necessary, divided as to eliminate such invalidity or unenforceability. In such case, all other provisions contained herein shall remain valid and continue to bind the parties hereto.
11. No Waiver
Any waiver by Backassure.com of any part of this Agreement must be in writing to be effective. A waiver shall not constitute either (i) a waiver of any other part of this Agreement or (ii) a continuing waiver, unless otherwise expressly stated in writing.