FINNING (CANADA) – TERMS AND CONDITIONS OF SALE FOR PARTS.CAT.COM
1. INTRODUCTION
1.1. These terms and conditions, together with the documents incorporated below are the basis on which Finning agrees to supply You with Goods from this Website. No prior dealings or course or usage of trade shall supplement or explain any terms herein unless consented to by Finning in writing.
1.2. This Website is primarily designed for use by corporate customers in Finning’s Canadian territory who require parts and consumables for their Caterpillar manufactured equipment. As such, We expect You to have the necessary technical knowledge and competence to determine the Goods which You require. We cannot be held liable for the consequences of the selection, or subsequent fitting or use, of incorrect Goods.
1.3 By placing Your Order, You hereby agree to these terms and conditions in their entirety and agree that any additional, different or inconsistent terms and conditions You may have provided to U s shall not be applicable. Finning may refuse to provide any Goods under this Agreement without liability if Your credit approval (if applicable) is denied or a Finning required letter of credit, guaranty or other security is not received.
2. DEFINITIONS AND INTERPRETATION
To make these terms and conditions easy to read, We have defined certain words. If a word begins with a capital letter, then this means that the word has been defined. A list of the defined words is set out below:
Acknowledgement of Order Placement an e-mail communication from Finning to You acknowledging receipt of an Order. This does not constitute acceptance by Finning of the Order;
Agreement means these terms and conditions of sale for the Website;
Business Day any day which is not a Saturday, a Sunday or statutory holiday any of Finning’s Canadian territory;
Company Account a payment account between Your company and Finning for the provision of products and services (either online or offline);
Confirmation of Order the email communication provided by Finning to you confirming acceptance of your Order;
Customer Account the account You register for on this Website to enable You to purchase Goods from this Website;
Customer Parts Return Policy the most updated version of Finning’s Customer Parts Return Policy, which can be found at www.finning.com/ReturnPolicy;
Goods the goods listed for sale on our Website; Order an order placed online by You requesting to purchase Goods from Finning;
We, Us, Our and Finning Finning (Canada) a division of Finning International Inc. Website parts.cat.com/en/finningca; and You, Your and Customer the customer placing the Order on the Website.
3. PLACING AN ORDER.
3.1. To purchase Goods on this Website, You will need to fill in and submit the online order specifying the Goods required and make payment for those Goods by clicking on the “place order” button.
3.2. If You are new to this Website and do not have a Customer Account, You will have the option to register for a Customer Account as part of the order process (the Website prompts You to do so).
3.3. Where You are an existing Customer and already have a Customer Account, then You will need to login into Your Customer Account in order to complete the Order.
3.4. You should check the Order carefully before submitting it. In particular, You must ensure that You have filled in Your personal details on the Order correctly (especially Your email address and the delivery address and the Goods which You require) otherwise Finning will not be able to confirm Your order or send the correct Goods to You.
3.5. All Orders placed are subject to acceptance by Finning. After you place an Order, We will send you an Acknowledgement of Order Placement to let you know that we have safely received it. A sale contract will not be formed between You and Finning until We issue You with a Confirmation of Order via email. We have the right to decline an Order for any reason, includi ng legal and regulatory reasons.
3.6. We will inform you by e-mail or telephone if Your Order has not been accepted and, subject to Your agreement, We will only proceed with those elements of the Order which We can fulfill. Our usual reasons for declining an Order are as follows:
• the Goods are unavailable;
• We cannot authorize Your payment;
• You are not allowed to buy the Goods from Us;
• We are not allowed to sell the Goods to You; or
• there has been a mistake on the pricing or description of the Goods
4. MAKING CHANGES AFTER PLACING AN ORDER
4.1. If You wish to make changes to an Order after placing an Order, please contact Us. We will let You know if the change is possible. If it is possible, then We will let You know about any changes to the price of the Goods, the timing of the supply of the Goods or anything else which would be necessary as a result of Your requested change and ask You to confirm whether You wish to go ahead with the change.
5. DELIVERY
5.1. Subject to availability, We generally provide three delivery options: (a) Collect from the branch of your choice. If You select this option, Finning will make the Goods available for collection at the Finning branch selected by You as part of the Order. (b) Deliver to Your address. If You select this option as part of the Order, Finning will arrange for the Goods to be delivered to the nominated address and the charge for delivery will be added to the Order prior to check-out. (c) Deliver to a Finning Drop Box If You select this option as part of the Order, the Goods will be delivered to the remote storage solution (“Drop Box”) You select.
If you select the Drop Box option, then the following special terms shall apply: i) risk of loss for the Goods shall transfer to You on delivery to the Drop Box; ii) You shall be invoiced upon delivery to the Drop Box; iii) unless otherwise agreed to by Finning, You shall be responsible, at Your sole cost, to retrieve the Goods from the Drop Bo x within seven (7) days of delivery (the “Pickup Time”); iv) if You fail to retrieve the Goods from the Drop Box within the Pickup Time, Finning may, in its sole discretion, have the Goods returned to Finning at Your expense and, subject to the Customer Parts Return Policy, if Finning has already received payment in respect of the Goods, those amounts shall be credited to Your account with Finning for future purchases; v) You are solely responsible to provide Finning current contact information to which Finning will send notices; vi) information provided to You for accessing the Drop Box is Your sole responsibility and Finning shall have no liability whatsoever for lost, stolen, or misappropriated access information leading to the loss, theft, or damage of/to the Goods; and vii) You shall be solely responsible, and shall indemnify Finning for in accordance with the terms of these terms and conditions, for any personal injury or property damage in any way relating to its use of the Dr op Box.
5.2. We strive to deliver all Orders placed on the Website by the “Request by Date” selected on the Website but cannot guarantee delivery by that date as it is an estimate only. Delivery on the “Request by Date” is also subject to: (a) the relevant Goods being in stock; and(b) Your Order being accepted by Us
5.3. Order status updates are available through this Website and our customer portal.
5.4. We may deliver the Goods in instalments if the Goods are not all available at the same time.
6. PRICE AND PAYMENT
6.1. The price of the Goods :(a) is the price indicated on the order page when You place Your Order;(b) is in Canadian Dollars;(c) is exclusive of applicable taxes which shall be added to the price before You place the Order; (d) does not include delivery charges. Your delivery charges will be shown once You have completed Your selection of the Goods and confirmed a delivery address; and (e) is subject to change prior to Finning issuing a Confirmation of Order to account for significant exchange rate (CAD/USD) fluctuations.
6.2 We make every effort to ensure that the prices listed on this Website are accurate. However, it is always possible that some Goods may be incorrectly priced. We will normally check prices before accepting Your Order so that where the Goods' correct price at Your Order date is: (a) less than Our stated price at Your order date, We will charge the lower amount; or(b) higher than Our stated price at Your order date, We will contact You and offer you the Goods at the correct price. You are not required to proceed with the purchase of the Goods at the corrected price, nor is Finning required to sell to you at the erroneous price.
6.3 If We accept and process Your Order where a pricing error is obvious and unmistakable and could reasonably have been recognized by You as a mispricing, We may terminate an Order, refund You any sums You have paid and require the return of any Goods provided to You.
6.4 Prices quoted on this Website may be changed at any time without notification, to reflect pricing alterations made by Our suppliers or for other valid business reasons.
6.5 Payment by Credit Card:(a) Subject to Finning’s approval, Payment can be made by credit card; (b) By using a credit card to pay for an Order, You confirm that the card being used is Your card and that where You are a corporation customer, any of Your individuals, employees or agents using the card are authorized to do so. (c) You authorize Finning to debit Your credit card for the total amount of the Order prior to the dispatch of the Goods to Your nominated delivery address.(d) All credit card holders are subject to validation checks and authorization by the card issuer. If the issuer of the card refuses to authorize payment Finning will not accept the Order. Finning shall not be obliged to inform You of the reason for the refusal, and will not be liable for the transaction not being completed. Finning is not responsible for any charges levied by Your bank or card issuer as a result of Finning processing of Your credit card payment in accordance with Order.
6.6 If you have a Company Account in good standing with Finning, You may use this account to pay for Your Order.
7 FORCE MAJEURE
Finning shall not be liable for any loss or damage arising from Finning’s failure to perform any obligation or delay resulting from any cause beyond the reasonable control of Finning or from any act of God, act of war whether declared or undeclared, act of civil or military authority, act of any governmental authority, Your acts or omissions or acts or omissions of contractors or subcontractors, civil disturbance, insurrection or riot, sabotage, fire, pandemics, inclement weather conditions, earthquake, flood, strike, work stoppage or other labour difficulty, embargo, fuel or energy shortage, equipment breakdown, delay or accident in shipping or transportation, failure or delay in obtaining necessary manufacturing facilities, labour or materials from its usual sources, or unforeseen circumstances or contingencies.
8 WARRANTY The terms of the applicable manufacturer’s warranty for the Goods (collectively, the "Warranty") shall apply. Unless stated otherwise in the Warranty, all timelines for the Warranty shall start on Finning’s invoice date. OTHER THAN THE WARRANTY, NO OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS, GUARANTEES OR SIMILAR OBLIGATIONS, WHETHER EXPRESS OR IMPLIED BY FACT, BY LAW, INCLUDING ANY STATUTE OR REGULATION, BY CUSTOM OR TRADE USAGE, OR BY ANY COURSE OF DEALING, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR PURPOSE OR FITNESS FOR A PARTICULAR PURPOSE, ARE APPLICABLE AND ALL OF THE FOREGOING ARE EXPRESSLY DISCLAIMED. OTHER THAN THE WARRANTY, FINNING MAKES NO WARRANTY THAT THE GOODS WILL BE SECURE OR ERROR-FREE, OR WILL MEET YOUR REQUIREMENTS. The Warranty is in the nature of liquidated damages and in substitution for any damages to which You might otherwise be entitled at law or in equity and, in particular, Customer hereby agrees that in lieu of an actions arising out of contract or tort, You will rely upon the provisions of the Warranty as Your sole remedy for any defect or deficiency in the Goods. In respect only of claims made under the Warranty, if there is a conflict or inconsistency between the terms of the Warranty and any other term of this Agreement, including, without limitation, any term of these Terms and Conditions, the terms of the Warranty shall govern.
9 Returns, Refunds, and Resale of Goods
Any request by You for a return or refund shall be subject to agreement by Finning, in its sole discretion, compliance with our Customer Parts Return Policy and any other applicable Finning policies, as they may be subject to modification, revision, or replacement from time to time. Without prejudice to any other rights that Finning may have, Finning shall be entitled to resell any Goods which are the subject of this Agreement without any liability to You whatsoever if You fail to comply with any of its terms and conditions.
10 Limits of Liability
FINNING SHALL NOT BE LIABLE, WHETHER BASED IN CONTRACT, WARRANTY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ALTERNATIVE TORT REMEDIES OR ANY OTHER THEORY OF LAW OR EQUITY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGE TO ASSOCIATED EQUIPMENT, LOSS OF PROFITS OR REVENUE, LOSS OF PRODUCTION, LOSS OF USE OF YOUR PROPERTY, PLANT, EQUIPMENT OR SYSTEM DOWNTIME COSTS OR CLAIMS OF YOUR CUSTOMERS. THE REMEDIES PROVIDED HEREIN ARE EXCLUSIVE AND FINNING’S TOTAL AGGREGATE LIABILITY TO YOU HEREUNDER SHALL NOT EXCEED HALF OF THE PURCHASE PRICE PAID BY YOU FOR THE SPECIFIC GOODS OR SERVICES FROM WHICH ANY CLAIM OR DAMAGES HEREUNDER MAY ARISE. THE FOREGOING LIMITATIONS ON LIABILITY WILL APPLY EVEN IF FINNING HAS BEEN ADVISED OF THE POSSIBILITY O F SUCH DAMAGES IN ADVANCE.
11 Indemnification
You shall defend, indemnify, and hold harmless Finning and its affiliates and their directors, officers, employees and agents from and against any and all liability, loss, damage, cost or expense (including solicitors’ fees) by reason of (i) any allegation, claim, action, suit or threat thereof, for the death or injury of any person(s) or damage or destruction of property arising out of the acts or omissions (including those as a result of negligence) or willful acts of You or Your agents or representatives; and (ii) Your breach of or failure to perform Your obligations hereunder.
12 Risk of Loss and Security Interest.
Except if otherwise set forth in the Agreement, risk of loss or damage to Goods shall pass to You upon delivery. All actual costs for transportation, tariffs, insurance and similar charges are for Your account unless otherwise specified. Notwithstanding that the Goods may be installed or otherwise incorporated into other equipment, title shall pass upon delivery and payment in full by You. From the point of delivery through and including commissioning and testing, You shall maintain all risks property Insurance naming Finning and any contractors as additional insureds as their interest may appear. You hereby grants Finning a purchase money security interest in the Goods until the purchase price is fully paid. You shall do everything necessary or convenient to perfect and maintain such security interest including, but not limited to, the prompt execution and delivery of financing statements as requested by Finning. Finning may, in its sole discretion, make registrations or take other action to protect its interest in the Goods. To the extent permitted by law, You hereby waive all rights to receive notice of registration or copies of financing statements, financing change statements, verification statements, or any other notices or documentation associated with the foregoing.
13 Confidentiality.
“Confidential Information” means information that is designated as confidential or should reasonably be understood to be confidential which includes but not limited to all specifications, illustrations, drawings, data and other information transmitted by Finning to You in connection with this Agreement. Confidential Information may only be disclosed to Your employees, professional advisors, agents, and subcontractors (“Representatives”) on a “need-to-know” basis in connection with this Agreement. Representatives shall be bound to treat the Confidential Information under terms at least as restrictive as those herein, and You shall be liable for unauthorized disclosures by Your Representatives. You will use at least the same degree of care as You employ with respect to Your own Confidential Information, but not less than a commercially reasonable standard of care. If You must disclose Confidential Information as required by law, You shall give reasonable prior notice to Finning.
14 Intellectual Property.
Goods (including software), incorporate technology, patents, trademarks, service marks, trade names, proprietary information, trade secrets and other intellectual property rights therein (collectively “Finning Intellectual Property”). All rights, titles and interests in and to the Finning Intellectual Property is the property of Finning, its licensors or certain other third parties, and is protected by Canadian and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. Subject to the applicable Terms of Use, Finning grants You a non-exclusive and revocable license to use the Finning Intellectual Property owned by and made available by Finning to the extent necessary to use the goods and/or services purchase under this Agreement and otherwise exercise its rights herein.
15 Ownership of Intellectual Property Rights in the Data.
All intellectual property rights in any data generated (“Output Data”) as part of the goods and/or services sold, licensed, or otherwise provided under this Agreement will vest in Finning upon the creation absolutely and You hereby assign absolutely all of Your intellectual property rights in and to the Output Data, except that You are permitted to use such Output Data solely for Your internal business purposes. For clarity, this provision only applies to data generated as part of the performance of this Agreement and does not apply to the raw data (“Raw Data”) that is provided by You or the users. Where You provide Raw Data, You will grant Finning a non-exclusive, irrevocable, transferrable, worldwide license to use the Raw Data that You provide.
16 Data Sharing.
You understand, acknowledge and agree that Finning and Caterpillar Inc., and its and their respective group of companies and business affiliates and contractually related third parties can and will collect and have possession of information about You, inclu ding information about Your ownership, rental, maintenance and use of Your Caterpillar machines and other equipment provided by or through Finning. Details relating to the information that is collected, how it is collected, how it is used and shared, and how it is kept secure are all contained in Finning’s Data Governance Statement which can be viewed at http://www.finning.com/en_CA/policies/data-governance.html and the Caterpillar Data Governance Statement which can be viewed at www.cat.com/en_US/legal-notices/data-governance.html.
17 Electronic Communication
With Your consent, Finning may send electronic communications to inform You of products or services available from Finning or its affiliated entities. When collecting information that might be used to contact You about Finning’s products and services, Finning will give You the opportunity to opt-out from receiving such communications. Moreover, each e-mail communication Finning send includes the ability to unsubscribe allowing You to stop delivery of that type of communication. If You elect to unsubscribe, Finning will remove You from the relevant list.
18 Trade Control Laws
Goods sold under this Agreement are subject to the Trade Control Laws of Canada, the United States of America, the European Union, the United Kingdom and other applicable jurisdictions and, in furtherance of those laws, Finning has trade compliance programs and policies that may go beyond statutory or regulatory requirements. You shall comply with all applicable Trade Control Laws. Without limiting the generality of the foregoing, the Goods may not be resold, transferred, or otherwise disposed of, to any country, person or entity in contravention of applicable Trade Control Laws. No direction from Finning with respect to Trade Control Laws will relieve You from Your obligations to comply with applicable Trade Control Laws. Notwithstanding anything to the contrary in this Agreement, Finning reserves the right to delay delivery, cancel or modify orders without liability to comply with Trade Control Laws. “Trade Control Laws” means export control and international economic sanctions laws and regulations, including, without limitation: i) Canada’s Export and Import Permits Act, the Special Economic Measures Act, the United Nations Act, the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law), Part II.1 of the Criminal Code, and any regulations or orders adopted thereunder; ii) the United States of America’s Export Administration Regulations, the International Traffic in Arms Regulations, and sanctions administered by the Treasury Department’s Office of Foreign Assets Control; iii) similar applicable laws, regulations or directives of the United Kingdom and the European Union; and iv) sanctions adopted by the United Nations Security Council.
19 Independent Contractor.
The parties agree that Finning is an independent contractor and not Your employee or agent. Equipment operators and Your other employees, agents, or subcontractors assigned to assist Finning may receive temporary instructions, directions or control from Finning but shall at all times be considered Your employees, agents, subcontractors and not of Finning’s.
20 Amendments.
No modifications, revisions or amendments to this Agreement will be binding unless made in writing and signed by both parties. No action, delay, or failure to act by Finning shall constitute a waiver of any right available to Finning under this Agreement except to the extent as may be specifically agreed to in writing by Finning.
21 Assignment Validity.
This Agreement is not assignable without the prior written consent of Finning, which consent may be withheld at Finning’s sole discretion. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
22 Applicable Law
This Agreement and each of the documents contemplated by or delivered under or in connection with this Agreement are governed by and are to be construed in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein and treated in all respects as an Alberta contract without reference to conflict of law rules. The parties to this Agreement hereby irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts of the Province of Alberta and all courts competent to hear appeals therefrom. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed by the parties with respect to this Agreement and the transactions contemplated hereby.