a) In these Terms and Conditions:
- “Company” or “PERI” means PERI Formwork Systems Inc.
- “Customer” means the company, partnership, other corporate entity, or person who agrees to buy the Product from PERI.
- “Force Majeure” means any act, occurrence, condition, or event beyond the control of a party that materially affects the performance of that party’s obligations under this agreement that could not reasonably have been foreseen or provided against (including strikes, riots, insurrections, wars, terrorism, military or national emergencies, acts of Governmental Body, catastrophes, natural disasters, power outages and interruptions, brownouts and fire), but does not include general economic or other conditions affecting financial markets generally.
- “Product" means the Product together with any parts, accessories, replacements, or additions, now or hereafter related to or affixed thereon. Any reference to the Product shall, where appropriate, include a reference to part of it.
- “Procurement Link” means the specific link on the Website where Customer may place orders for the Products.
- “Website” means the website hosted by PERI on which this Agreement is posted and operating from the URL shop.peri.ca
a) The Agreement as defined herein forms the entire agreement between PERI and the Customer and no other express or implied terms, written or oral, shall be incorporated into the Agreement.
c) Amendments to the Agreement must be in writing and executed by PERI and the Customer.
d) Any provision of this Agreement prohibited by or unlawful or unenforceable under any applicable law shall, at the sole option of PERI, be ineffective without invalidating the remaining provisions of this Agreement; provided, however, that to the extent that the provisions of any such applicable law can be waived, they are hereby waived by Customer.
e) This Agreement cannot be cancelled by the Customer. An order once placed with and accepted by PERI, can only be cancelled with PERI’s written consent and upon terms that will indemnity PERI against loss.
Sale of product
a) Unless otherwise stated in writing by PERI, prices are quoted in Canadian dollars and payable on a component basis.
b) The price of Product and other prices referred to on the Website do not include HST, GST, or other applicable taxes nor do they include delivery charges, which will be quoted separately.
c) PERI pallets and baskets used in order to transport the Product will be charged per pallet as required and at the price specified on the Website. The quantity will be determined at the time of shipping.
d) PERI hereby sells to Customer the Product listed in the Customer order confirmation.
e) Customer will pay to PERI the purchase price for the Product listed in the Customer order, any applicable delivery charges, and applicable taxes.
f) Upon discharge by Customer of its obligation under this Agreement, Customer shall acquire title to and ownership of the Product free of encumbrances caused by PERI.
g) There are no returns of Product(s) except for deficient or defective Product(s). The Customer must contact customer service at PERI to inform PERI of any request for return of deficient or defective Product within 15 days of delivery of the Product to the Customer. PERI reserves the right to exchange the Product or refund the purchase price, at its discretion.
a) In the case of Customers without a pre-agreed credit facility, Product must be paid for by Customer when ordered. Payment shall be made by credit card.
b) In the case of Customers with a pre-agreed credit facility, Product will be paid pursuant to the terms of the Customer credit facility with PERI.
c) PERI may, at any time and at its sole discretion, withdraw with immediate effect a Customer's credit facility.
d) The time for payment is of the essence of the Agreement.
e) All payments and other amounts due from Customer to PERI under this Agreement are absolute, unconditional and payable without set off, compensation, counterclaim, or abatement.
f) Customer shall be responsible for and pay all sales or other excise taxes on the sale of the Product immediately upon such taxes becoming due. Taxes includes all taxes, imposts, levies, fees, duties, and charges now or hereafter imposed by any federal, provincial, municipal, or other taxation authority on Customer or the sale of the Product or the delivery, possession, use, or maintenance of the Product or on PERI in respect of any of the foregoing including, sales, excise, use, property, business, transfer, goods and services, and value added taxes and including penalties or interest based on late payment of such amounts but excluding any taxes based on income from the sale of the Product.
g) The Customer shall pay interest at a rate of eighteen per cent (18%) per annum on all amounts payable under this Agreement, in each case from the date any such amount becomes past due, until such amounts are paid in full.
a) Delivery shall be deemed to take place at the moment of loading the Product onto the delivery vehicle of the Customer or independent carrier for transportation to the Customer.
b) A bill of lading or delivery and acceptance certificate shall accompany each delivery of Product. Such bill of lading or delivery and acceptance certificate must be signed for by the Customer on receipt of delivery of the Product. PERI shall not be responsible for the condition of any Product delivered or any discrepancies between the quantities listed on the bill of lading or delivery and acceptance certificate and actual quantities received unless Customer notifies PERI in writing within 24 hours following Customer’s receipt of delivery. Failure to notify PERI in writing within 24 hours shall constitute a waiver of every claim or demand concerning the discrepancy in quantities or condition of any Product delivered and Customer shall be deemed to have unconditionally accepted the Product.
c) PERI shall load the Product for shipping to the Customer. The Customer is responsible for unloading the Product upon delivery to the Customer.
d) Customer agrees to take delivery of all Product no later than 30 days from the date of the Customer order.
e) PERI shall not be responsible for any delays due to strikes, transportation of Product or any other cause whatsoever. Under no circumstances will PERI be liable for any loss, damage, or other inconvenience of any kind resulting from the lack of performance of a common carrier or other third party shipper.
f) All delivery documents must be signed by an authorized person of the Customer.
g) PERI may deliver Product by separate instalments.
h) If the Customer fails to accept the Product or fails to give PERI adequate delivery instructions, then PERI may, at its sole discretion, do one or more of the following:
- PERI may store the Product until actual delivery to the Customer or until the Product is disposed of pursuant to this Agreement. The Customer shall be liable for the costs of storage and insurance of the Product under this section.
- PERI may make appropriate arrangements with a common carrier to ship such Product to Customer on Customer’s behalf and Customer hereby declares and agrees that such common carrier shall be the agent of Customer and all risks of transport and costs incurred by PERI for transport are the obligation of the Customer.
- PERI may sell the Product and retain the sale proceeds. The Customer shall be liable to pay the costs of the sale. Further, if the Product is sold for less than the total purchase price payable by the Customer, the Customer shall be liable to pay PERI the difference in price as well as the costs of sale.
- This does not affect any other right or remedy PERI may have under this Agreement.
i) Any delivery dates stated in the Agreement are approximate only and PERI is not liable for any delay in delivery of the Product, however caused. Time of delivery is not of the essence of the Agreement.
Property and risk
a) Risk in the Product passes to the Customer on delivery in accordance with section 5(a).
b) The Customer is responsible for the proper handling, maintenance and installation of the Product. The Customer shall install, maintain and use the Product in a careful and prudent manner in compliance and conformity with safe industry practices and the requirements of all applicable laws, ordinances and regulations. The Customer hereby releases PERI and indemnifies and holds harmless PERI for any and all injury, damage, or other loss to the Customer or a third party resulting from the Product being handled, assembled, installed, maintained or used in an improper or careless manner.
c) Customer shall bear the entire risk of loss, damage, destruction, theft, seizure or governmental taking of the Product or any part thereof. The Customer is not relieved of its obligations under this Agreement as a result of any loss.
d) Customer assumes all risk of loss and liability for, and shall indemnify PERI and hold PERI harmless against any and all loss, damage, claims, expenses, or injury to persons (including death), or property of Customer or others, arising out of ownership, use, custody, control, or disposition of Product by Customer, its agents or employees, or by any third parties.
e) PERI shall not be liable for any and all loss, damage, claims, expenses, or injury to persons (including death), or property of Customer or others, arising in any manner, directly or indirectly, out of ownership, use, custody, control, or disposition of Product by Customer, its agents or employees, or by any third parties.
f) PERI shall have no liability in contract or in negligence or otherwise for consequential loss, special loss, indirect loss, or economic loss, howsoever arising, including damages for loss of business profits.
g) PERI shall not be liable in damages or otherwise for any failure or delay on its part in the performance of any obligation hereunder caused by strike, lockout, riot, war, terrorism, accident, act of God, industrial disturbance, governmental action or regulation, curtailment of or failure to obtain Product or sufficient or adequate raw materials, fuel, labour or utilities, industrial, transport, machinery or Product breakdown, or for any cause whatsoever beyond PERI’s reasonable control.
a) Customer acknowledges that it has selected the Product based on its own skill and judgment and further acknowledges and agrees that the Product is being supplied by PERI on an “as is” basis and that no representation, warranty or condition, whether statutory or otherwise, express or implied, oral or written, collateral or otherwise, is being given by PERI as to description, fitness for purpose, condition, merchantability, durability, freedom from latent defects, quality, suitability or durability, or in respect of any other matter or thing whatsoever, all of which are hereby excluded and waived by the Customer.
b) PERI specifically disclaims all implied warranties for the Product, including the implied warranties of merchantability and fitness for a particular purpose.
a) Each of the following is a default by Customer (a “Default”):
- Customer fails to make any payment under this Agreement when due and payable.
- Customer fails to perform, observe or comply with any other obligation, term or condition of this Agreement.
- any event of default occurs under any other agreement between PERI and Customer.
- any representation or warranty made by Customer to PERI in connection with this Agreement is incorrect.
- Customer makes any assignment for the benefit of its creditors, becomes insolvent, commits any act of bankruptcy, takes any action to wind-up or dissolve, ceases or threatens to cease to do business as a going concern, or any proceeding in bankruptcy, receivership, winding-up, dissolution, liquidation or insolvency is commenced by or against Customer or its property.
- PERI in good faith believes and has commercially reasonable grounds to believe that the prospect of payment or performance by Customer under this Agreement is or is about to be impaired or the Product is or is about to be placed in jeopardy.
Remedies on default:
a) On Default:
- All unpaid amounts for sale of Product and all other amounts payable hereunder, shall immediately become due and payable with interest chargeable at 18% per annum. These are liquidated damages and not a penalty.
- Customer shall, if PERI requests, immediately return the unpaid Product at Customer’s expense to PERI.
- All costs incurred by PERI on Default, including legal costs, expenses, carrier costs, costs of sale, and other costs (“Enforcement Costs”) shall be payable by the Customer to PERI.
- PERI may by notice in writing terminate this Agreement;
- All rights and remedies of PERI, either under this Agreement or at law or in equity or otherwise afforded to PERI, are cumulative and not alternative and PERI may pursue all remedies available to it against the Customer.
Use of website
a) The Customer shall be liable for any abuse or fraudulent use of the Website. Abuse and fraudulent use of the Website shall include the following:
- Obtaining or attempting to obtain services by tampering with or making connection with any facilities of PERI with an attempt to avoid payment for the Products;
- Making false representations or falsifying credit information or through any other fraudulent means or devices whatsoever with the intent to avoid payment in whole or in part for the Product;
- Attempting to or actually disrupting, impairing or interfering with, altering or modifying any information, data or materials posted and/or displayed on the Website; or
- Violating or attempting to violate the security of the Website, including, without limitation: attempting to probe, scan or test the vulnerability of the Website or to breach security or authentication measures. Violations of system or network security may result in civil and criminal liability.
b) The content of the Website, including information, software, photographs, video, graphics, user interface, forms, diagrams, trademarks, logos or other material, are exclusive property of PERI and are protected by intellectual property laws including but not limited to copyright and trademark laws. No part or parts of the Website or sites accessed through the Website, may be reproduced, distributed, republished, commercially exploited, displayed, broadcasted, hyperlinked or transmitted in any manner or by any means or stored in an information retrieval system without the prior written permission of the PERI, provided however that permission is hereby provided to download and print this Agreement and other materials on the Website for purposes related to the Customer’s procurement of Products and record keeping thereof.
a) This Agreement and all rights, remedies and benefits of PERI hereunder may be assigned by PERI without notice to or the consent of Customer and Customer hereby accepts such assignment and waives signification of the act of assignment and the delivery of a copy of any assignment document. Upon such assignment, the assignee (the “Assignee”) shall be entitled to enforce the rights and remedies and to receive all benefits, which would otherwise accrue to PERI under this Agreement. Upon notice of an assignment, Customer shall unconditionally pay to such Assignee all payments and other amounts due hereunder and shall not assert any claim or defence against such Assignee or which Customer may have had against PERI in any action for payments or other amounts due and payable hereunder, except the defence of payment to the Assignee.
b) Subject to applicable legislation, Customer hereby consents to PERI conducting a credit investigation of Customer and to PERI making inquiries with financial institutions or other persons in a business relationship with Customer in connection therewith; Customer hereby authorizes and directs such persons to answer PERI’s inquiries.
c) Customer shall promptly notify PERI in writing of any change in Customer’s name and any change in the location of Customer’s Head Office.
d) This Agreement shall be governed by law of the Province of Ontario and the parties attorn to the jurisdiction of the courts of the Province of Ontario.
e) If any dispute arises between the Parties relating to the application, interpretation, implementation or validity of this Agreement, the parties may agree to resolve the dispute by arbitration subject to the Ontario Arbitration Act, 1991. The decision arrived at by the arbitrator shall be final and binding and no appeal shall lie therefrom. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction
f) Subject to the terms hereof, this Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective heirs, beneficiaries, successors, and assigns.
g) Any notice required or permitted to be given hereunder must be in writing and will conclusively be deemed to have been received by its recipient on the business day it is delivered or sent by email or facsimile transmission to the party’s address or at such other address as such party specifies to the other party in writing or, if sent by regular or registered mail, provided there is no interruption in postal services, on the fifth business day after the day of mailing, addressed to such party at such address.
h) Customer agrees to do all things and execute or obtain all documents as may be required by PERI in order to give effect to or better evidence this Agreement including the execution of financing statements or other documents to effect security registrations to protect PERI’s interests, any acknowledgements required by any Assignee and any waivers or subordinations from any contractors, owners of the property where the Product is located, the mortgagor of such owner’s property or the Customer’s landlords or creditors.
i) Notwithstanding any other sections hereof, all obligations of Customer, including the payment for Product and other amounts payable by Customer hereunder, and all rights and remedies of PERI hereunder shall survive the termination of the Agreement.
j) If PERI accepts a late or partial payment or delays the enforcement of its rights or remedies under this Agreement on any occasion, such acceptance or delay shall not constitute a waiver by PERI of its rights hereunder and all amounts and obligations owing under this Agreement shall continue to be payable when due.
k) If more than one person executes this Agreement as Customer, their obligations hereunder shall be joint and several.
l) Customer acknowledges receipt of a true copy of this Agreement and waives, to the extent permitted by applicable law, all rights to receive copies of financing statements, financing change statements, verification statements, or copies of other notices or filings made by PERI at any time in connection with this Agreement, any schedule thereto or any amendment thereof.
m) The rule of contra preferentum does not apply to this Agreement. Each party has had opportunity to make changes to this Agreement.
n) Customer has read and understood this Agreement and is agrees to be bound by this Agreement voluntarily and without duress. Customer has had the opportunity to obtain independent legal advice before executing this Agreement
o) Except as otherwise provided, the invalidity or unenforceability of any term of these Terms & Conditions does not affect the validity or enforceability of any other term. Any invalid term will be treated as severed from the remaining terms.
p) It is the express wish of the parties that this Agreement and any related documents be drawn up in English. Il est de la volonté expresse des parties que cette convention ainsi que tout document connexe soient rédigés en langue Anglaise.
q) Currency. Unless specified otherwise, all dollar amounts expressed in this Agreement refer to Canadian currency.