In these GT&Cs, the following definitions apply:
- ‘’Supplier’’ being BaronEco.
“Contract”means the contract between the BaronEco and the Customer for the sale and purchase of Goods in accordance with these GT&Cs, including the Customer’s Order and the BaronEco’s written acceptance or fixed written quote and the Customer’s written acceptance.
Force Majeure Event” means any event outside a party’s reasonable control including, but not limited to acts of God, war, flood, fire, pandemic or epidemic, labour disputes, strikes, lock-outs, riots, civil commotion, malicious damage, explosion, terrorism, governmental or regulatory actions (including without limitation imposing an export or import restriction, quota or prohibition or failing to grant a necessary licence or consent), resulting in the non-performance of the Contract by the Supplier or its subcontractors, and/or the interruption or failure of utility service or any other similar events.
“Goods” means the goods (or any part of them) supplied by the Supplier to the Customer in accordance with a Contract.
“Order” means the Customer’s order for Goods, as set out in the Customer’s written acceptance of the BaronEco’s quote or in correspondence between the parties, or as confirmed in the Supplier’s written confirmation of the Customer’s order.
2. PRICES
2.1 Unless otherwise specifically agreed between the parties, all prices shall be ex works with all stated prices (where applicable) being exclusive of freight charges and other transportation costs , unless otherwise agreed (where applicable and including insurance costs), customs duties, import levies, incidental levies, packaging and pallet costs, labour costs and HST (or all other applicable taxes) (at the statutory rate) and other similar expenses which will be invoiced to the Customer and payable in addition to the costs of the Goods as outlined in the Contract.
2.2 The Supplier’s prices are calculated based on the pricing conditions that apply at the time of entering into the Contract. If the cost of supplying the Goods (including without limitation in relation to materials, labour, other manufacturing costs or any other factor which is beyond the Supplier’s control) materially changes between the entering into of the Contract and the actual delivery date, the Supplier may (by giving notice to the Customer) increase the price of the Goods to reflect any increase in the costs of the Goods. Where the cost of supplying the Goods increases by 20% or more of the total price of the Goods, either party may terminate the Contract where an agreement on price cannot be achieved between the parties.
2.3 The Supplier shall not be bound by any previous stated prices, previous quotes or previous Contracts provided to a Customer where a new or follow-up Contract is entered into with the Customer.
3. DELIVERY AND ACCEPTANCE
3.1 The Supplier shall arrange for the delivery of the Goods to the Customer at the Customer’s designated place of delivery, all at the Customer’s cost and expense. For certainty, the Supplier will not install or assemble the Goods upon delivery. Rather, the Supplier’s sole obligation is to deliver the Goods to the Customer at its delivery dock, or at the edge of the premises Delivery is completed once the Goods are delivered to the Supplier’s designated place of delivery and the Customer agrees that it shall be solely responsible for and shall assume all risks associated with the loading of the Goods on to the Customer’s preferred method of transport regardless of whether said transport is loaded at the Supplier’s premises or other designated place of delivery.
3.2 Unless otherwise agreed, any dates provided for delivery are approximate only and time of delivery is not of the essence. Where a delivery period is agreed between the parties, such delivery period shall start to run when the Supplier notifies the Customer that each of the following has been received from the Customer: (i) all documents and information necessary to fulfil the Contract, (ii) where applicable, any upfront payment set out in the Contract; or (iii) the timely delivery of any material to be supplied by the Customer to the Supplier. Unless otherwise agreed, a time period for delivery shall mean the time to the Goods being made available for collection or shipment at the Supplier’s nominated place of delivery.
3.3 If the Supplier fails to deliver the Goods after a reasonable time following the approximate delivery date as specified in the Contract, through no fault of the Supplier, BaronEco shall not be responsible for any costs incurred by the Customer and the contract may be terminated. The Supplier shall have no liability for any failure to deliver the Goods that is caused by a Force Majeure Event or the Customer’s gross negligence or wrongful intent, failure to provide the Supplier with adequate instructions that are relevant to the supply of the Goods or has defaulted on accepting receipt of the Goods.
3.4 If at any time the Supplier becomes aware or reasonably suspects that the Customer is insolvent, suspends or ceases trading or its financial position is such that it may be incapable to adequately fulfil its obligations under the Contract, the Supplier shall be entitled to amend the payment terms set out in this clause III, including (without limitation) by requesting payment on demand prior to completing any further production in respect of a Contract or by requesting payment concurrently with delivery of the Goods. The Supplier reserves the right to delay delivery until any upfront payment requested (including without limit under clause 7.2) is paid by the Customer.
3.5 The Supplier may deliver the Goods by instalments, each of which such instalment shall be invoiced and paid for separately. Any delay in delivery or defect in one or more instalment(s) shall not entitle the Customer to cancel any other instalment. Provided the Supplier delivers up to and including 5% more or less of the total quantity of Goods ordered, the Customer may not reject them.
3.6 If the Customer fails to take actual delivery of the Goods within 10 Business Days of the Supplier notifying the Customer that the Goods are ready for delivery, then, except where such failure or delay is caused by a Force Majeure Event, the Supplier (without prejudice to its other rights under the Contract, these GT&Cs or at law) may resell or otherwise dispose of part of all of the Goods and, after deducting its reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods and/or charge the Customer for any shortfall below the price of the Goods.
3.7 The Supplier shall be entitled to use raw materials or other materials that deviate from those set out in the Contract and any sample provided to the Customer insofar as the replacement materials are not of material difference in terms of usability to those set out in the Contract. In particular, the Customer acknowledges that due to the nature of the material, the colour or surface finish of the Goods may vary.
3.9 All packaging materials made available by the Supplier to the Customer shall be returned to the Supplier at the Supplier’s nominated place of delivery if possible, otherwise the Customer shall make any such packaging available for collection by the Supplier at such times as the Supplier shall reasonably request. The expenses of collection of packaging materials by the Supplier shall be borne by the Supplier.
3.10 The Customer may only return non-defective Goods to the Supplier with the Supplier’s consent. Where the Supplier consents to a return of non-defective Goods, the Supplier shall be permitted to charge a minimum restocking fee to the Customer of either 25% of the then present net value of the Goods, plus transport costs.
4. PACKAGING, SHIPMENT AND RISK
4.1 The Supplier will arrange delivery on behalf of the Customer to the Customer’s premises or preferred place of delivery, (unless otherwise agreed between the parties) the packaging of Goods, the method of shipment and the route of shipment shall be at the sole discretion of the Supplier. The Customer shall be responsible for all expenses and costs of the delivery, unless otherwise agreed.
4.2 The risk in the Goods shall pass to the Customer immediately upon the Goods being delivered to the Customer. Where the Customer arranges for delivery of the Goods, then the risk in the Goods shall pass to the Customer immediately upon the completion of the Goods being loaded onto the Customer’s transport vehicle at the Supplier’s premises, regardless of whether the Customer has arranged to pick up the Goods itself or for a third party to pick up and transport the Goods from the Supplier to the Customer even if the dispatch of the delivery from the Supplier’s premises is delayed due to a fault on the part of the Customer. Further, where such a delay occurs, the Customer shall be obliged to bear all costs of storage, damage or loss of the Goods.
4.3 Where it is agreed that the Supplier shall deliver the Goods to the Customer’s premises or preferred place of delivery, this shall be subject to suitable access roads and to unloading by the Customer without delay; otherwise, the Customer shall be liable for any costs arising as a result of such delay, including but not limited to loss of opportunity, and any delay in delivery to other customers of the Supplier.
4,4 If the Customer fails to take delivery because they have cancelled your contract under the Distance Selling Regulations we shall refund or re-credit you within 30 days for any sum that has been paid by you or debited from your credit card for the goods. Within your right to cancel you shall be required to return the goods to the Supplier. If the goods are not returned, the Supplier reserves the right to deduct any direct costs incurred by the Supplier in retrieving the goods as a result of such failure.
4.5 If the Customer does not accept delivery of the goods deliberately, the Supplier may charge you to store and resell the goods at the best price they can, then charge you for any shortfall in costs.
4.6 BaronEco aim to deliver on time, although dates given are estimates, and cannot guarantee that the delivery company will deliver on time, therefore accept no responsibility for this.
4.7 On occasions goods may be delivered in batches, due to availability, and any additional cost for this will be specified when ordering or advised of as soon as possible.
4.8 Goods should be checked on delivery by the Customer. If damage to packaging can be seen either refuse the delivery or when signing specify that it is unchecked, to assist any warranty claims. We must be informed within 4 working days of delivery, of any damaged goods.
- QUALITY OF GOODS The Supplier warrants that on delivery and for the Warranty Period, the Goods shall: (i) conform in all material respects with their description and any applicable specification or samples approved by the Customer, (ii) be free from material defects in design, material and workmanship, (iii) be of satisfactory quality; and (iv) be fit for any purpose held out by the Supplier.6.2 The Warranty Period will be 20 years from the date of delivery save that:(a) for reinforced posts the Warranty Period will be 5 years from the date of delivery;(b) for custom-made products, industrial profiles, finished parts and systems, second quality and remaining stock sales reinforced posts the Warranty Period will be 12 months from the date of delivery; and
(c) where the Goods are not manufactured by the Supplier, the Supplier warrants that the Goods shall comply with the warranty at clause 6.1 at the date of delivery only. Where the Goods are not manufactured by the Supplier, the Supplier shall use reasonable endeavours to pass on to the Customer any warranty it receives for the Goods from the manufacturer.
6.3 Upon receipt of the delivery of the Goods, the Customer shall, without delay, inspect the Goods and immediately (and in any event within the Warranty Period outlined in clause 6.2) report to the Supplier in writing if any of the Goods do not comply with the warranty set out at clause 6.1 and shall provide such details of its order and photographic evidence as the Supplier may require.
6.4 Upon receipt of notice from the Customer during the Warranty Period that the Goods, or some of the Goods, do not comply with the warranty set out at clause 6.1, the Supplier shall be given a reasonable opportunity of examining such Goods and may request the return of the Goods by the Customer to the Supplier’s place of business at the Customer’s cost (to be reimbursed if on inspection the Goods do not conform with the warranty set out at clause 6.1). The Supplier shall, at its option, repair or replace any defective Goods, or refund the price of any defective Goods in full. For the avoidance of doubt, the Supplier will not be required to reimburse costs of transport, installation, re-installation or any consequential damage, disassembly, or other costs, regardless of whether the Goods are found to be defective.
6.5 The Supplier shall not be liable for any breach of warranty where the Goods are not fit for the specific purpose required by the Customer unless the Customer has notified the Supplier of that specific purpose prior to the completion of the Contract and/or the delivery of the Goods and the Supplier provides an express warranty in writing relating to that specific purpose.
6.6 The Customer acknowledges and accepts that due to the nature of the material used to manufacture the Goods, there may be minor fluctuations in the aesthetic appearance and quality of the Goods (including but not limited to the colour or surface finish) which may deviate from any specification or sample provided by the Supplier. The Customer accepts that the Supplier has no control over such qualities and that the Supplier will not be liable for them as if they were a defect where the Goods delivered are fit for their intended use. Any agreement on the specified colour of any Goods will therefore be based on the general colour of the Goods, taking into account the minor fluctuations in colour which may occur.
6.7 Notwithstanding clause 6.1, the Customer acknowledges and accepts that (and the Supplier shall not have any liability in relation to):
(a) where Goods are used outdoors and are exposed to certain weather and other conditions for a prolonged period, the colour and the surface quality (but not the use) of the Goods may alter. The Supplier does not provide any guarantee to the Customer in respect of colour fastness; and
(b) where the Goods are exposed to heat or cold temperatures, the size of the Goods may fluctuate by +/- 1.5% which should be borne in mind by the Customer when installing the Goods.
6.8 The Supplier shall not be liable to comply with the warranty set out at clause 6.1 if the defect arises due to: (i) improper handling or installation of the Goods by the Customer or a third party or handling of the Goods that is contrary to any oral or written instructions provided by the Supplier to the Customer or contrary to good trade practice, (ii) where the Customer (or a third party) has taken steps to fix any defect without the Supplier’s consent or continues to use the Goods after having become aware of the defect; (iii) reasonable wear and tear, wilful damage, negligence, abnormal storage or working conditions, (iv) the Supplier following any drawing, design or specification supplied by the Customer; (v) the Customer altering or repairing the Goods without the consent of the Supplier; (vi) the Goods differing from their specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or (vii) damage or destruction (whether intentional or unintentional) caused by the actions of the Customer or a third party.
6.9 In the event of any inconsistency between this clause 6, any term or condition in these GT&Cs and the Warranty For our Recycled Plastic Products, the terms of these GT&Cs shall prevail. - TERMS OF PAYMENT 7.1 Unless otherwise agreed all payments and expenses shall be made by the Customer in full and in immediately available funds, without any deduction, set-off, counterclaim or withholding (aside from any deduction or withholding that may be required by law) on the initial ordering Including custom made goods. 10. LIMITATION OF LIABILITY AND CLAIMS10.1 Except as set out in these GT&Cs, All warranties, representations, terms, conditions and duties implied by law relating to fitness, quality and/or adequacy are excluded to the fullest extent permitted by law.10.2 Nothing in these GT&Cs shall exclude any liability which cannot legally be limited, including (but not limited to) liability for:
(a) death or personal injury caused by the gross negligence of the Supplier; and
(b) fraud or fraudulent misrepresentation by the Supplier and
(c) breach of the terms implied by sections 13 and 15 of the Sale of Goods Act (Ontario), as same may be amended from time to time.
10.3 The Supplier shall have no liability to the Customer whether arising in contract, tort (including negligence) or otherwise for:
(a) any loss (whether direct or indirect) of profits, sales or business revenue, anticipated savings, reputation or goodwill;
(b) any special, indirect or consequential loss, costs, damages, charges or expenses however arising; and
(c) any business interruption, loss of business, contracts and/or opportunity.
10.4 Subject to clause 10.2, the Supplier’s total liability to the Customer in respect of all claims and other losses arising under or in connection with a Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total price of the Goods under the Contract.