These terms and conditions (“Terms”) apply to all sales by Huayi Tire Canada, Inc. (“Huayi”) to you (“Customer”) of tires, including Double Coin tires and any and all related products and services (collectively, “Products”). These Terms override and replace any conflicting terms or conditions included in any order or other document, unless Huayi has expressly accepted such terms in writing.
- Products. The Products are intended solely for resale by Customer in Canada or the United States. These Terms are not a commitment to sell any particular quantity of Products. These Terms set forth the terms and conditions that will apply if any such sales are made. All orders are subject to acceptance by Huayi. Huayi may require Customer to provide purchase orders, and Customer authorizes Huayi to rely on Customer’s list of authorized buyers, if any. Customer agrees to pay for all goods delivered as ordered, even in the event that Customer’s representative is not present to acknowledge delivery.
- Payment. Customer shall pay prices and associated charges applicable at the time an order is accepted, in accordance with these Terms and any terms and conditions in Huayi’s invoices. Unless otherwise agreed between the parties, arrangement for payment in full is due upon delivery.
- Payment Terms Applicable to Credit Customers. For purchases on credit, as approved by Huayi and indicated on the applicable Huayi invoice, the terms of this paragraph apply. Unless otherwise provided on the applicable Huayi invoice, all payments are due Net 30 days from invoice date. No discounts for early payment. Customer agrees to pay amounts and other amounts payable hereunder. Absent specific remittance instructions, payments will be applied in such order and amounts as Huayi may determine in its sole discretion. Customer will remain responsible for all amounts due and payable to Huayi even if the Customer’s credit account is terminated. Any invoiced amounts not paid when due will be subject to a finance charge equal to the lesser of the maximum rate allowed by law and a periodic rate of 1.5% per month (18% per annum), applied to the unpaid balance from the due date until paid. Notwithstanding any provision in these Terms to the contrary, Customer shall not be obligated for interest exceeding the maximum amount permitted under applicable law. Any excess interest received will be credited to outstanding amounts payable hereunder and any balance will be refunded to Customer. Customer represents and warrants that Customer’s credit account shall be used only in the conduct of its business, for commercial purposes as commercial trade credit, and not for personal, family or household purposes.
- Title to the Products. The title to any of the Products to be delivered to Customer shall pass to Customer upon delivery, unless the parties agreed that title passes at an earlier time. Until Huayi has received payment in full, Huayi shall retain a purchase money security interest in the Products in accordance with the applicable provisions of the Revised Statutes of Ontario, including the Sale of Goods Act of 1990, as amended, the Personal Property Security Act of 1990, as amended, and other applicable law. Until Huayi has received payment in full, Customer shall keep the Products separate from other products of the Customer and third parties and properly stored, protected, insured and identified.
- Trademarks and Copyrights. Huayi and its affiliates have developed, acquired, and licensed trademarks, trade names, trade dress, copyrights, and other valuable intellectual property (“Huayi Trademarks and Copyrights”) in connection with the manufacture, distribution, marketing, promotion, and sale of Double Coin tires, including the Double Coin trademarks and copyrights. With each sale of Products to Customer, including the sale of Double Coin tires, Huayi hereby grants to Customer a limited, non-exclusive license to use the Huayi Trademarks and Copyrights to market, promote, distribute, and sell the Products, subject to the license limitations set forth below.
- Limitation of Trademark and Copyright License. The non-exclusive right of Customer to use the Huayi Trademarks and Copyrights is limited and does not give Customer the right to do the following: (a) use the Huayi Trademarks and Copyrights for any purpose other than specifically permitted in Paragraph 5; (b) sub-license the Huayi Trademarks and Copyrights except for the purpose of distributing and/or selling the Products to regional and local tire dealers who are customers of Customer; (c) sub-license the Huayi Trademarks and Copyrights to any national chains or tire dealers; (d) use the Huayi Trademarks and Copyrights on any website or other internet sales channel other than Customer’s own website or internet sales channel;
(e) market, promote, distribute, or sell the Products bearing the Huayi Trademarks and Copyrights through any third-party website or internet sales channel without first obtaining express prior written approval from Huayi; (f) alter, modify, amend, or otherwise revise the Huayi Trademarks and Copyrights in any respect for any purpose without first obtaining express prior written approval from Huayi; (g) use any language or display the Huayi Trademarks and Copyrights in such as a way as to create the impression that the Huayi Trademarks and Copyrights are property of Customer; and (h) use the Huayi Trademarks and Copyrights beyond the limited permission to use herein granted.
- Intellectual Property Ownership; Infringement Claims. Customer, by taking delivery of the Products acknowledges that the ownership of all right, title and interest in the Huayi Trademarks and Copyrights is and shall remain solely vested in Huayi and/or its affiliates. If, upon request of Customer, any of the Huayi Trademarks and Copyrights are altered, modified, amended, or otherwise revised, Customer acknowledges that Huayi and/or its affiliates shall be the sole and exclusive owners of all right, title, and interest in the altered, modified, amended, or otherwise revised marks and rights. Customer shall promptly notify Huayi upon the occurrence of any of the following: (i) any unauthorized use or infringement by any third party of any of the Huayi Trademarks and Copyrights; or (ii) any assertion by a third party that Customer’s use of any of the Huayi Trademarks and Copyrights constitutes trademark or copyright infringement or any similar claim.
- Product Conditions and Warranties; Limitations. All Products are subject to applicable standard manufacturer’s warranties or Huayi’s written warranty then in effect. Except as explicitly set forth herein, Huayi expressly disclaims all CONDITIONS OR warranties regarding the products, express or implied, including, without limitation, the implied CONDITIONS OR warranties of noninfringement, merchantability, fitness for a particular purpose, AND TITLE. Under no circumstances shall Huayi or its affiliates be liable for any incidental, special, indirect, contingent, punitive or consequential damages of any kind, including without limitation lost profits, downtime, or substitution costs, whether or not Huayi was aware of the possibility of such damages.
- Customer Representations and Warranties. By ordering Products from Huayi after receipt of these Terms and Conditions of Sale, Customer represents and warrants that: (a) Customer is authorized to do business in its place of incorporation, organization, or formation and its principal places of business and that all necessary approvals to enter into these Terms have been obtained; (b) Customer is purchasing the Products for resale in the Canada or the United States only; (c) Customer is purchasing the Products for resale to regional and local tire dealers and end-users only and Customer will not sell or re-sell the Products to national dealers or chains; and (d) Customer shall comply with all federal, provincial, or municipal laws or regulations which are now or may become applicable to Customer’s purchase or resale of the Products. Customer agrees to display all required Product warranties and notices in accordance with the manufacturer’s or Huayi’s policies and with all applicable laws.
- Indemnification. By ordering Products from Huayi after receipt of these Terms and Conditions of Sale, Customer agrees to indemnify Huayi against, and reimburse and pay Huayi on demand for, all losses, damages, costs, expenses, collection charges and attorney’s fees (whether out of court or in litigation, including appeals and bankruptcy proceedings) incurred by Huayi: (a) in endeavoring to collect any amount payable hereunder, or to enforce, protect or defend Huayi rights under these Terms; (b) in connection with any Customer checks returned for non-sufficient funds (NSF) or otherwise, including all returned checks fees permitted under applicable law; (c) as a result of Customer’s breach of its representations and warranties made in these Terms; and (d) as a result of the negligent or willful actions or omissions of Customer.
- Force Majeure. Huayi shall not be liable for any delay, damage or non-performance as a result of any cause or event beyond Huayi’s reasonable control, including an act of God, act of Customer, labor disputes or shortages, shortages or delays in transportation or raw materials, embargo, war, riot, defaults of common carriers, equipment failures, or delays in the performance of suppliers of subcontractors.
- Term and Termination. These Terms are effective immediately, and shall become binding on Huayi and Customer when customer places its next order from Huayi. These Terms and Conditions shall remain in effect until modified or terminated by Huayi in writing. These Terms may be terminated by Huayi at any time by giving at least thirty (30) days’ prior written notice to Customer. If Customer fails to make any payment when due or to perform any obligation under these Terms, Huayi may, at its option and without waiving or limiting any of its other rights or remedies under these Terms or at law, declare all of Customer’s indebtedness and obligations to Huayi to be immediately due and payable and may immediately terminate these Terms by giving written notice to the Customer.
- Modifications to Terms. Huayi may from time to time, in its sole discretion and upon written notice to Customer, modify these Terms.
- Miscellaneous. These Terms contain the entire agreement of the parties regarding the subject matter described herein, and supersede all other representations, understandings, arrangements and prior agreements, whether written or verbal. Only Huayi and Customer have enforceable rights and remedies under these Terms. Huayi’s rights under these Terms are cumulative.
- Agent. Nothing in these Terms shall be construed to make either party a partner, employee or agent of the other, and neither party has any authority to bind the other in any respect. The parties are independent contractors as to each other.
- Confidentiality. During and after the term of these Terms, Customer will maintain the confidentiality of all documents, confidential information, trade secrets, marketing and operating methods of Huayi relating to the Products and business of Huayi (“Trade Secrets”) and refrain from using and disclosing Trade Secrets for personal or commercial gain, or for any other purpose not in furtherance or of incidental to the obligation of the Customer hereunder, except with Huayi’s written consent. Customer agrees that a breach of this Confidentiality provision shall cause irreparable harm to Huayi and that Huayi is entitled to seek appropriate injunctive relief to prevent or remedy any breach of this Confidentiality provision.
- Assignment. Customer may not assign any of its rights or obligations under these Terms without prior written consent of Huayi, and such consent will not be unreasonably withheld. The Terms shall inure to the benefit and be binding upon the parties, their permitted assigns, heirs, successors, administrators, and executors. If Customer transfers title to the Products to an affiliate or third-party, such transferee shall agree to be bound by these Terms.
- Waiver. No change to the Terms shall be effective unless in writing, executed by an authorized representative of Huayi. Failure to require compliance with a part of the Terms is not a waiver of that part or any other part of these Terms. No term, provision or breach shall be deemed waived, unless such waiver is in writing and signed by Huayi.
- Severability. If any provision of these Terms is deemed invalid or unenforceable, that provision shall be modified, if possible, to the minimum extent necessary to make it valid and enforceable, or if it cannot be so modified, then severed, and the remainder of these Terms shall remain in full force and effect.
- Governing Law and Jurisdiction. The laws of Ontario, Canada (without giving effect to its conflicts of laws principles) shall govern all matters arising out of or relating to these Terms, and all and any claims or disputes pursuant to these Terms shall be brought solely and exclusively in the Provincial or Federal courts of the Regional Municipality of York, Ontario, Canada; provided however, that Huayi may bring legal action to collect any amounts due in the county in which the Products were sold, any county in which Customer maintains a place of business, or any court in Ontario, Canada, at Huayi’s election. Customer hereby submits to the jurisdiction of the Ontario courts for purposes of adjudicating any action arising out of the Terms, and hereby waives, to the fullest extent permitted by law, any objection to the laying of venue therein. Huayi and Customer further agree that the aforementioned choice of venue is to be considered mandatory and not permissive in nature, thereby precluding the possibility of litigation in any jurisdiction other than that specified in this section or by Huayi. Huayi and Customer, to the extent they may legally do so, hereby waive any right each may have to assert the doctrine of forum non conveniens.
- Waiver of Formal Service of Process. Customer hereby waives formal service of process as provided by The Hague Service Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (1965) and accepts service by registered mail at Customer’s principal place of business as allowable by applicable law. If Customer is unable to waive formal service by applicable law, Customer shall appoint a professional agent, such as CT Corporation, to accept formal service of process.
- Arbitration. At the election of either party, any and all controversies, claims, or disputes between the parties directly or indirectly arising out of or related to the Terms, may be settled by arbitration, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitration will be conducted in the English language in the Regional Municipality of York, Ontario, Canada, in accordance with the Revised Statutes of Ontario, Arbitration Act, S.O. 1991, c. 17. There shall be a single arbitrator agreed to by the parties. If the parties cannot agree to an arbitrator, one shall be appointed pursuant to the Regular Arbitration Rules of the Canadian Arbitration Association. Nothing in this provision precludes Huayi from seeking injunctive relief, as appropriate, in a Provincial or Federal Court in Ontario, Canada to enforce Huayi’s rights under these Terms.
- Attorney Fees. In any suit or claim based on any cause of action, regardless of form, arising out of or in any way connected with these Terms, the prevailing party shall be entitled to reasonable costs and attorney’s fees.
- Change of Terms/Notice. Any notice from Huayi of changes to these Terms will be deemed to have been properly given when sent to Customer by email or Canada Post with first-class postage prepaid. All other notice under these terms shall be submitted to Customer at the address listed on the applicable Order and to Huayi at Attention: Huayi Legal, 145 Royal Crest Court, Unit 44, Markham, Ontario L3R 9Z4 by personal delivery or by registered mail (postage prepaid, return receipt requested).
- Effective Date. Customer’s purchase of Products after the date of these Terms and Conditions constitutes its acceptance of these Terms. Customer agrees that each and every sale by Huayi to Customer from the effective date forward is subject to these Terms. An electronic signature shall have the same validity and binding effect as a handwritten signature. The Customer’s representative placing an order with Huayi represents that he or she is authorized to do so on behalf of Customer.
July 20, 2019