TERMS OF SALE
ACCESS WINDOW AND DOOR DESIGN CENTRE LTD. (the "Corporation")
1.1 General Order Process
- 1.1.1 If a party (the “Customer”) wishes to purchase a product from the Corporation (the “Product”), the Customer shall fill out an order form provided by the Corporation indicating a description of the Product and the desired delivery date. The Corporation shall then provide a quote (the “Quote”) to the Customer based on the consultation with the Customer. The quote shall contain a detailed description of the products offered by the Corporation (the “Products”), along with design description, and sizes. Orders cannot be processed unless the Corporation receives the following from the Customer:
- 1.1.1 The Quote, signed and dated by the Customer to indicate the acceptance of the terms contained therein;
- 1.1.2 A signed sales agreement in form prescribed by the Corporation (the “Sales Agreement”);
- 1.1.3 The required deposit payment.
- 1.2.1 If a party (the “Customer”) wishes to purchase a product from the Corporation (the “Product”), through the Corporation’s web portals, the Customer shall fill out and submit the applicable online order form.
- 1.2.2 For all online orders the entirety of the purchase price shall be payable by credit card on submitting the online order form.
- 1.2.3 Delivery terms for online orders are EXW Winkler, Manitoba unless otherwise agreed on. Product needs to be picked up by the Customer either at the manufacturing plant or at the Corporation’s head office in Winkler, Manitoba.
- 1.3.1 Once the Customer’s order (the “Order”) has been processed, such sale shall be final. As all custom-designed products are specifically made for each Customer, the Order cannot be cancelled or changed after processing. Cancellations or changes of any other order must be approved in writing by the Corporation at its sole discretion. If an existing order is changed, it shall be treated as a cancellation and a new signed quote will be required. Full payment for the cancelled Order may still be required, at the Corporation’s sole discretion.
- 1.4.1 You may return most unused and undamaged spare parts that were not custom-ordered and/or custom-designed and/or custom-made (which includes custom-cut) within 30 days of delivery EXW Winkler, Manitoba for a full refund. Shipping costs are not refundable.
- 1.4.2 All returned products must be returned at the Customer’s expense to the Corporation’s head office in Winkler, Manitoba. The Corporation does not accept any shipping charges for returned Products.
1.6 Occasionally products or colors are discontinued. Whenever we receive notice of discontinued items, we will notify you immediately and give you the option to change or cancel your order. If an order has been placed for a discontinued Product, such sale shall be cancelled and the Customer shall receive a refund for any payment made for such product.
2.0 GENERAL PAYMENT TERMS
2.1 The Customer shall be required to make payment as follows:
- 2.1.2 For orders over CAD $2,000.00, fifty percent (50%) of the original purchase price of the Product shall be required on signing of the Sales Agreement as a deposit, with the remaining portion of the purchase price payable prior to delivery.
- 2.1.3 For orders under CAD $2,000.00, the entirety of the purchase price shall be payable on signing of the Sales Agreement.
2.3 Payment shall be made to the Corporation by way of cheque, debit, and, in the case of orders of less than CAD $10,000.00, most major credit cards. All personal (non-certified) cheques must be received to Corporation head office of the Corporation no less than seven (7) business days prior to the delivery of all orders.
2.4 Ownership of the Product shall remain with the Corporation until such time as payment of the purchase price has been made in full, plus any applicable interest, penalties, and any other costs, including payment of any note or extension given or judgment secured.
2.5 Until such time as full payment is made pursuant to the above, the Product shall remain at the risk of the Customer, and the Customer may not part with possession of the Product but must keep the Product insured, in good condition, free and clear of all liens and encumbrances.
2.6 The Corporation does not accept charges or back charges of any kind unless agreed to in writing.
2.7 The Customer shall be responsible to pay any taxes, duties, or other fees imposed by any governmental authority on the sale of the Product unless the Customer provides the Corporation with a tax exemption certificate or other document acceptable to the authority imposing the tax or charge.
2.8 The Customer will not withhold payment of the completed Products or any other amount payable to the Corporation in connection with the purchase of the Product in the event of any dispute between the Customer and the Corporation.
2.9 The cost of cleaning glass, uPVC frames, interior doors, and/or other products is not included in the contract price.
3.1 Once the Order has been processed, the Customer shall receive an order confirmation. The target delivery date shall be between five (5) and twelve (12) weeks of receipt of the order confirmation. However, please note that delivery times may vary depending on the Product ordered, availability of materials, back-ordered inventory, factory slowing or overload, or other unforeseen problems.
3.2 The Product shall be considered delivered upon either:
- 3.2.1 Pick-up of the Product by the Customer at the manufacturing plant or head office of the Corporation in Winkler, Manitoba; or
- 3.2.2 Transport of the Product to the shipping address designated by the Customer on the sales agreement.
3.4 The Customer agrees to report any shipping damages or shortages within forty-eight (48) hours of delivery. Shipping damages or shortages not reported within forty-eight (48) hours of delivery will be the responsibility of the Customer. The Corporation assumes no responsibility for scratched or broken products once shipment of products has been received.
3.5 The Corporation will not be responsible for the loss resulting from delays in supply caused by strikes, lock-outs, labour disputes, raw material shortages, transportation delays, or other matters beyond the Corporation’s control.
3.6 If the Customer has not picked up the Product or agreed to delivery arrangements for the Product within thirty (30) days after the Product is ready for pick-up or delivery, the Corporation may charge a storage fee. If the Customer has not picked up the Product or agreed to delivery arrangements for the Product within thirty (30) days after the Product is ready for pick-up or delivery, the Corporation may, in its sole discretion, elect to cancel the Order. The Customer shall remain obligated to pay for all Product and any further charges.
4.0 LIMITATION OF LIABILITY AND INDEMNITY
4.1 Except as provided in any express written warranty subsequently provided by the Corporation to the Customer, the Corporation makes no representation or warranty, whether written, oral, statutory, express, or implied, concerning any products, including but not limited to any warranty of merchantability or fitness for a particular purpose, and the Corporation shall have no liability of any kind for any losses or damages due to any delays in fulfilling orders accepted from the Customer, delays in meeting delivery dates, or delays in shipping, or for any losses or damages resulting from causes beyond the immediate and direct control of the Corporation. In no event shall the Corporation be liable for any special, indirect, incidental or consequential, punitive, or other similar damages, whether for breach of any warranty, for breach or repudiation of any other term of condition of sale, or for liability on the basis of negligence, strict liability or otherwise, even if the Corporation shall have been advised in advance of the likelihood thereof. In all situations and circumstances (including, without limitation, if for any reason the exclusion of damages in this provision is not enforceable or void), the Corporation’s liability to the Customer or others shall not in any event exceed the amount actually paid by the Customer to and received by the Corporation for that portion of the Products involved or, if the matter does not directly involve specific products, then for the portion of the Products most closely related to the matter. The Customer further acknowledges and agrees that incorrect installation, repair, or maintenance of the Products may result in any warranty otherwise applicable becoming null and void.
4.2 In addition to the above, the Corporation is not responsible for the following:
- 4.2.1 Differences between the Product approved for production and the building plans or other requirements of the Customer;
- 4.2.2 Structural work or any other work relating to the building and/or rough opening framework where the Product is to be installed;
- 4.2.3 Flashing and/or waterproofing around openings;
- 4.2.4 Ensuring that the Product meets any applicable regulations, by-laws, or safety glass regulations.
- 4.3.1 The activities, actions, or operations of the Customer, its affiliates, or the respective employees, agents, or representatives thereof, including, without limitation, acts of negligence or willful misconduct;
- 4.3.2 The Customer’s use, installation, or repair of the Products;
- 4.3.3 Breaches by the Customer of any of its representations or obligations hereunder.
5.1 The Corporation reserves the right to modify or amend the Terms of Sale at any time, effective upon publishing an updated version of the Agreement on the websites of the Corporation located at www.accesswd.ca, or www.window-fashion.net, or as part of any Sales Agreement. The Customer hereby acknowledges and agrees to be bound by such future modifications and/or amendments.
5.2 Any failure by the Corporation to enforce, at any time or for any period of time, any of the provisions hereunder shall not be construed as a waiver by the Corporation of the right of the Corporation to enforce such provisions.
5.3 The Terms of Sale and the Customer’s rights and obligations hereunder may not be assigned or transferred without the consent of the Corporation, expressed in writing.
5.4 The obligations of the Customer herein shall survive the termination of the Sales Agreement and the Customer shall be bound by such obligations after termination hereof.
5.5 The Terms of Sale shall be read with all changes of gender or number required by the context.
5.6 If the Customer has a Dealer Agreement with the Corporation, Such Agreement shall supersede the terms herein.
5.7 The invalidity of any provision of the Terms of Sale or any covenant herein contained shall not impair the validity of any other provision herein set out.
5.8 Any changes to the Terms of Sale shall not be effective unless made in writing, signed by the Corporation and the Customer.
ACCESS WINDOW AND DOOR DESIGN CENTRE LTD. (the "Corporation")
A. ACCESS WINDOW AND DOOR DESIGN CENTRE LTD. is a corporation duly incorporated and in good standing under the Laws of the Province of Manitoba, Canada;
B. ACCESS WINDOW AND DOOR DESIGN CENTRE LTD. operates, and offers the sale of goods and services through the web portal www.window-fashion.net;
C. The User (as herein defined) wishes to use the web portal www.window-fashion.net; NOW THEREFORE, in exchange for the right to use the Portal, the User hereby agrees to be bound as follows:
1.2. "Corporation" means ACCESS WINDOW AND DOOR DESIGN CENTRE LTD.;
1.3. "Parties" means the Corporation and the User, collectively; and “Party” means any one of them;
1.4. "Person" means any individual, corporation, partnership, trustee or trust, unincorporated association, or other legal entity, and pronouns have a similarly extended meaning;
1.5. “Site” means the web portal www.window-fashion.net and all content contained thereon.
1.6. “Site Services” means goods and services provided by the Corporation to the User through the Portal.
1.7. “Third Party” means any Person who is not a Party.
1.8. “User” means any individual, corporation, partnership, trustee or trust, unincorporated association, or other legal entity using the Site.
2.1 Subject to the Agreement and to the compliance of the User herewith, the Corporation hereby grants the User a non-exclusive, non-transferable, revocable, limited right to access the Site for personal, non-commercial use only (other than to purchase Site Services) (the “License”). Except as otherwise provided herein or with the expressed, written consent of the Corporation, the User may not copy, reproduce, modify, create derivative works from, publicly display or perform, publish, republish, transfer, sell, download (other than page caching on your web browser), store, transmit, distribute, or exploit this Site, any materials downloadable therefrom, or any related software, without the express prior written consent of the Corporation. Any other use of the Site is strictly prohibited.
2.2 The User shall limit the use of the Site granted by the License to such approved and shall not, under any circumstances:
2.2.1 Use the Site in any manner that could disable, overburden, damage, or impair the Site or interfere with any other party's use of the Site or otherwise use any device, software, or routine that interferes with the proper operation of the Site;
2.2.2 Use any robot, spider, or other automatic device, process, or means to access the Site or to obtain information regarding the Corporation, other users, or any other information whatsoever from the Site (including, without limitation, any information residing on any server or database connected to the Site);
2.2.3 Use any manual process to monitor or copy the Site or any part thereof for any purpose whatsoever without the express written consent of the Corporation;
2.2.4 Allow any Third Party to use the User’s username and/or password to access the Site and/or purchase any Site Services;
2.2.5 Introduce any viruses, Trojan horses, malware, adware, ransomware, monitoring software, worms, code, or other material which is malicious or technologically harmful to the Site, the hardware hosting the Site, any user of the Site, or any Third Party;
2.2.6 Attempt to gain unauthorized access to, interfere with, hack into, attack, decrypt, damage, or disrupt any parts of the Site, the server on which the Site is stored, or any server, computer, or database connected to the Site;
2.2.7 Attempt to decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Site;
2.2.8 Link to the Site from any other outside website without the express, written consent of the Corporation;
2.2.9 Make use of any of the Site in any way that would violate any law, including, without limitation, copyright law, in the Province of Manitoba or in the jurisdiction in which the User is located at the time of such use.
2.3 The Corporation may amend or terminate the License, or any portion thereof, at any time in its sole discretion. If such termination is as a result of violation of any of the terms hereof, the Corporation shall have such further remedies as contained herein or permitted by law.
3.0 REPRESENTATIONS AND WARRANTIES OF THE USER
3.1 The User represents and warrants:
3.1.1 That the User is over the age of eighteen (18) and has full power and authority to enter into the Agreement with the Corporation and fully intends to be bound the terms hereof;
3.1.2 That all information provided by the User, including, without limitation, any payment and shipping information and any further information provided in order to register on the Site is complete and accurate to the best of the User’s knowledge, and the User undertakes to update or amend such incomplete or inaccurate information forthwith of learning of such incompleteness or inaccuracy.
4.0 INTELLECTUAL PROPERTY AND TRADEMARK
4.1 The Site and all of the content now or hereafter included thereon, including, without limitation, all photographs, images, designs, text, articles, publications, catalogs, digital downloads, product information, software, code, technology, data, video, audio, graphics, logos, icons, slogans, trade names, product/service names, trademarks, service marks, domain names, and the "look and feel", design, selection, and arrangement of the Site as a collective work and/or compilation (collectively the "Content") are protected by Canadian and international laws regarding copyrights, trademarks, trade dress, unfair competition and other intellectual property or proprietary rights and are owned or licensed, as the case may be, by the Corporation, except to the extent otherwise expressly indicated or attributed in the Content. The User must abide by all copyright notices, trademark notices, attribution information, or restrictions contained in any Content accessed through the Site. No right relating to any intellectual property of the Corporation or any Third Party is transferred to the User or any Third Party as a result of such party’s to or use of this Site. In addition to the foregoing, the trademarks, logos, and service marks of the Corporation shall not be used in connection with any product or service that is not expressly authorized in writing by the Corporation or in any manner that is likely to cause consumer confusion in any way disparages or discredits the Corporation
5.0 LIMITATION OF LIABILITY
5.1 The Corporation makes no representations or warranties, whether written, oral, statutory, express, or implied, concerning the Site, including but not limited to any warranty regarding and the information, content, or Site Services, or that the Site will be secure, accurate, reliable, error-free, uninterrupted, or free of viruses or other harmful components, any actions or inactions of any Third Party (including damages incurred by the User or any Third Party as a result of navigation to websites run by a Third Party from links on the Site), or damages resulting from causes beyond the immediate and direct control of the Corporation. Further, the Corporation makes no representations or warranties regarding the accuracy of information contained on the Site including, without limitation, information relating to colours, product descriptions, pricing, and availability, or of the display of the colours, textures, and characteristics of any of the products on the Site. In no event shall the Corporation be liable for any special, indirect, incidental, consequential, punitive, or other similar damages (including loss of income), whether for breach of any warranty, for breach or repudiation of the Agreement, or for liability arising from the use of the Site on the basis of negligence, strict liability, or otherwise, even if the Corporation shall have been advised in advance of the likelihood thereof. In all situations and circumstances (including, without limitation, if for any reason the exclusion of damages in this provision is not enforceable or void), the Corporation’s liability to the User or others shall not in any event exceed the amount actually paid by the User to and received by the Corporation.
5.2 The Corporation reserves the right to correct any errors, inaccuracies, or omissions and to change or update information on the Site at any time without notice. Further, the Corporation reserves the right to refuse or cancel any orders containing any error, inaccuracy, or omission, whether or not the order has been submitted, confirmed, and/or the User has been charged for such purchase. If the User has been charged for the purchase and the order is canceled, the Corporation shall promptly issue a refund to the User.
5.3 The Site may link to internet websites and resources (the “Outside Sites”) operated by Third Parties. The inclusion of any links to Outside Sites is for convenience only and does not imply the endorsement, affiliation, or recommendation by the Corporation of any Third Parties or the Outside Sites, and the Corporation makes no representations or warranties regarding the security, validity, or safety in viewing, downloading content, purchasing goods or services, or in any other way using the Outside Sites. By using such links, the User is accessing the Outside Sites at their own risk and subject to the terms and conditions of use and privacy policies thereof. The user is instructed to carefully review any such terms, conditions, and policies before engaging in any transactions or providing any information on the Outside Sites.
6.1 The User shall and does hereby indemnify, defend, and hold harmless the Corporation, its affiliates, and their respective owners, shareholders, directors, officers, employees, agents, representatives, and assigns, from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs, and expenses, (including, without limitation, attorney’s fees and expenses) caused by, attributable to, resulting from, or arising out of the use of the Site, any content generated by the User, or the breach by the User of any of the representations, warranties, or obligations contained herein.
7.0 ADDITIONAL POLICIES
7.2 The terms of any sale made through the Site shall be governed by the Terms of Sale, Limited Warranty, Shipping and Handling, and such further policies of the Corporation (each as amended from time to time) which can be found on the Site, and the terms and conditions contained therein are incorporated by reference to this Agreement.
7.3 The Agreement and/or the use of the Site by the User may be subject to such other rules, regulations, or policies as the Corporation may publish from time to time. By continuing to use the Site after the publishing of such rules, regulations, or policies and any modifications or amendments thereto, the User agrees to be bound by such rules, regulations, or policies. If such rules, regulations, and/or policies should conflict with the Agreement, the Agreement shall prevail
8.1 The Corporation reserves the right to modify or amend the Agreement at any time, effective upon publishing an updated version of the Agreement on the Site. The User hereby acknowledges and agrees that, by using the Site, the User is bound by such future modifications and/or amendments.
8.2 Any failure by the Corporation to enforce, at any time or for any period of time, any of the provisions hereunder shall not be construed as a waiver by the Corporation of the right of the Corporation to enforce such provisions.
8.3 The Agreement and the User’s rights and obligations hereunder may not be assigned or transferred without the consent of the Corporation, expressed in writing.
8.4 The obligations of the User herein shall survive the termination of the Agreement and the User shall be bound by such obligations after termination hereof.
8.5 The Agreement shall be read with all changes of gender or number required by the context.
8.6 Headings are inserted for convenience of reference only and shall not be used in the interpretation of the Agreement.
8.7 Time shall be of the essence of the Agreement.
8.8 The Agreement and such additional rules, regulations, and/or policies implemented by the Corporation pursuant to the above contains the complete agreement between the Corporation and the User and supersedes any prior agreement whether written or oral.
8.9 The Agreement shall be governed and construed according to the Laws of the Province of Manitoba. The jurisdiction for any adjudication related to the Agreement shall be the Court of Queen’s Bench in the Province of Manitoba.
8.10 The invalidity of any provision of the Agreement or any covenant herein contained shall not impair the validity of any other provision herein set out.
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