PRODUCT CATEGORIES

EVA-LAST AMERICAS, LLC
STANDARD TERMS AND CONDITIONS OF SALE FOR UNITED STATES AND CANADA

  1. INTERPRETATION
    The following definitions are used –
    1. “Seller” – Eva-Last Americas, LLC;
    2. “Purchaser” – any natural person or corporate entity who/which purchases, or offers to purchase, the Products from the Seller;
    3. “Party/Parties” means the Seller and the Purchaser;
    4. “Products” – building and construction materials such as Eva-Last’s range of composite decking, facias, railing, cladding, pergolas, and related ancillaries such as fasteners, aluminium extrusions, metal and aluminium structures that the Seller sells in the USA and Canada from time to time;
    5. “PO” or “Purchase Order” – the written purchase order to be submitted by the Purchaser to the Seller setting out the quantity and description of the Products that the Purchaser requires and offers to purchase such Products from the Seller;
    6. “Confirmed Customer Sales Order” / “Eva-Last Sales Order” – the written notice to be issued by the Seller setting out and confirming the Purchaser’s requirements of Products and if necessary, requesting an amended PO from the Purchaser as more fully set out in 4 below.
  1. ACCEPTANCE
    1. Sales of all Products by the Seller to the Purchaser are governed by these Eva-Last Standard Terms and Conditions (these “Eva-Last T&Cs”). All Purchase Orders and Confirmed Customer Sales Orders are governed by and subject to these Eva-Last T&Cs. As such the Purchaser is deemed to have agreed that acceptance by the Seller in a Confirmed Customer Sales Order is governed by, and subject to, these Eva-Last T&Cs. In addition the Purchaser’s acceptance of delivery shall evidence the Purchaser’s acceptance to these Eva-Last T&Cs.
    2. Any Purchaser’s terms and conditions are specifically excluded, unless agreed in writing and signed by or on behalf of the Parties.
    3. In the event of the Seller and the Purchaser having executed a separate agreement in writing relating to the purchase and sale of the Products which includes additional and/or different terms to these Eva-Last T&Cs (a “Separate Agreement”), then the terms of such Separate Agreement prevail over these Eva-Last T&Cs, and to the extent there is any conflict or ambiguity between these Eva-Last T&Cs and such Separate Agreement.
    4. These Eva-Last T&Cs may not, in any manner whatsoever, be amended, or modified or waived unless a written instrument in respect thereof is signed by or for and on behalf of the Parties.
    1. PRICING AND PAYMENT TERMS
      1. All pricing, transactional records and payments shall be in USD.
      2. Prices shall remain valid for a period of 30 days from date of the Seller’s written quotation.
      3. The Purchaser shall pay the invoiced purchase price of Products in full without deduction or set off.
      4. Payment terms are full payment prior to delivery against receipt of the Confirmed Customer Sales Order unless other payment terms have been agreed in writing between the Purchaser and the Seller.
      5. The granting of credit terms is subject to the sole and unfettered discretion of the Seller. Credit terms will only be considered pursuant to the Purchaser having completed the Seller’s Application for Credit and appropriate credit check.
 
  1. ORDERING
    1. All quotations sent by the Seller to the Purchaser constitute invitations to the Purchaser to make an offer to purchase Products from the Seller.
    2. The Purchaser’s PO’s shall set out the Product category, the Eva-Last Product range, the Eva-Last Product colour and the specific quantities and specifications of each Eva-Last Product category range and colour. In the event of any instruction, stipulation and/or other terms on the face of the PO and/or in any other separate document, being in conflict with the terms of these Eva-Last T&Cs, these Eva-Last T&Cs shall prevail. The Purchaser shall bear the costs incurred for any non-standard shipping and packaging instructions. In addition any instruction shall not be in conflict with any applicable laws and regulations.
    3. It is recorded that all PO’s placed by the Purchaser on the Seller shall be deemed to be offers to purchase the Products set out therein.
    4. Pursuant to receipt of a PO from the Purchaser where there is no adjustment or modification required, the Seller shall issue a Confirmed Customer Sales Order, confirming the acceptance of the PO from the Purchaser.
    5. If the PO requires adjustment (e.g. clarifications, additions and amendments), the Seller shall liaise with the Purchaser on such adjustments. Upon consensus being reached on the Purchaser’s exact requirements, the Seller will send a Confirmed Customer Sales Order to the Purchaser setting out the exact products ordered by the Purchaser and with a request to the Purchaser to furnish an amended PO matching the Confirmed Customer Sales Order. Thus the onus is upon the Purchaser to ensure that the Purchaser’s final PO matches the Seller’s Confirmed Customer Sales Order.
    6. Whilst the Seller will use its reasonable endeavours to ensure that the manufacturing times and/or the shipping dates and/or delivery dates as may be set out in the Confirmed Customer Sales Order are met, given the vagaries of manufacture, shipping and transportation, such manufacturing times, shipping dates and delivery dates are estimates. As such, time will not be the essence of any Confirmed Customer Sales Order.
    7. Should the Purchaser purport to cancel a Confirmed Customer Sales Order or any part thereof, prior to shipment/delivery, then the Seller shall be entitled to –
      1. accept such wrongful cancellation and claim damages;
      2. accept the cancellation subject to a minimum 10% cancellation fee being levied and paid on the value of the cancelled Confirmed Customer Sales Order;
      3. in the event of Products being specifically manufactured to the Purchaser’s, or the Purchaser’s customers’ specifications and dimensions (i.e. a bespoke order) then the full invoice amount shall become due and payable on demand. Should any deposit have been made pursuant to the Confirmed Customer Sales Order then the Seller shall be entitled to retain such deposit and set off the value of such deposit against the value of the cancelled Confirmed Customer Sales Order.
    8. All of the above provisions are without prejudice to any other rights the Seller may have under these Eva-Last T&Cs or in law.
  1. SHIPPING DIRECT FROM THE MANUFACTURER
    1. For the purpose of shipping direct from the manufacturer the following definitions are used –
      1. “Container” means a full 20 foot container or a full 40 foot container;
      2. “incoterms 2020” – the incoterms published by the International Chamber of Commerce version 2020;
      3. “FOB” – Free On Board – as defined in the incoterms 2020;
      4. “CIF” – Cost Insurance and Freight – as defined in the incoterms 2020;
      5. “DDP” – Delivery Duty Paid – as defined in the incoterms 2020.
    2. All orders in respect of direct shipping from the manufacturer shall be for full containers.
    3. When the Confirmed Customer Sales Order is ready for shipment, the Seller shall send a written notice, via email, to the Purchaser informing the Purchaser that the Confirmed Customer Sales Order is ready for shipment and setting out the planned/available shipping dates (hereinafter referred to as the “Shipping Date Notice”).
    4. The Products will be shipped directly from the manufacturer to the Purchaser from the port of origin, on an incoterms 2020 – FOB basis, CIF basis or DDP basis.
    5. Should the Products be shipped from the manufacturer directly to the Purchaser then depending on the incoterms 2020 shipping convention adopted, the passing of risk of the Products from the Seller to the Purchaser shall take place as determined per the rules of the incoterms 2020 in respect of such shipping conventions adopted.
    1. DELIVERY EX-WAREHOUSE
      1. “Delivery” – the delivery of the Products at the Purchaser’s premises by the Seller, or by a third party contractor for and on behalf of the Seller, or the collection of Products by the Purchaser at the Seller’s premises or the collection of Products by transport contractor acting on behalf of the Purchaser from the Seller’s premises.
      2. “Delivery Date” – the date upon which the delivery takes place at the Purchaser’s premises or at the Seller’s premises as the case may be.
      3. “Delivery Note” – the Seller’s delivery note and/or invoice that will accompany the delivery of the Products to the Purchaser.
      4. On the Delivery Date all risk in the Products shall pass from the Seller to the Purchaser.
      5. Signature of the Delivery Note by the Purchaser, or by the Purchaser’s representative or by any person present at the Purchaser’s premises ostensibly being an employee of the Purchaser, shall constitute –
        1. conclusive proof of the quantity of the Products delivered;
        2. conclusive proof that the Products delivered are in good order.
      6. Orders ex-warehouse do not have to be for full containers. Such orders can be for the specific quantities as may be required by the Purchaser.
 
  1. SECURITY INTEREST
    1. The Seller reserves its right, in its sole discretion to require satisfactory security before Shipment or Delivery of the Products to the Purchaser.
    2. The Purchaser grants a security interest in all Products and in the proceeds of such Products until the full purchase price and all additional costs have been paid by the Purchaser to the Seller. In the USA and subject to the Guides under Article 9 of the Uniform Commercial Code UCC adopted by all States in the USA, the Seller may at its option file all documents required to protect its security interest in the Products and/or the proceeds in respect thereof and the Purchaser undertakes to co-operate with the Seller in taking such action.
    1. PERMITTED VARIATIONS TO THE PRODUCTS Without notice to the Purchaser, the Seller may at any time make changes or variations to the Products which, in the Seller’s opinion, do not affect the general characteristics of the properties of the Products.
 
  1. DAMAGED PRODUCTS ON RECEIPT OF DELIVERY
    1. Should the Purchaser contend that any of the Products are damaged on receipt of delivery, the Purchaser shall be obliged to note such alleged damaged products on the Delivery Note. Then within 24 hours from time of Delivery, the Purchaser must send a back-up email clearly specifying the alleged damaged products with a photograph of the alleged damaged products (hereinafter referred to as “a damaged products claim”).
    2. The Seller shall not accept any damaged products claim not noted on the Delivery Note at time of delivery and/or not followed up with an email within the said 24 hours as set out above.
    3. Upon receipt of a damaged products claim the Seller shall have the election to –
      1. arrange for an inspection of the alleged damaged products at the Purchaser’s premises; or
      2. accept the damaged products claim as set out in the email and photograph referred to in 9.1 above; or
      3. not accept the damaged products claim with written reasons for such non-acceptance.
    4. At all times the Purchaser shall retain the alleged damaged products on hand until receipt of written instructions from the Seller, as to whether the Seller wishes to uplift the damaged products or instruct otherwise.
    5. In the event of the Seller agreeing to accept a damaged products claim, the Seller’s sole liability shall be the replacement of the damaged products or credit the Purchaser with the invoiced cost thereof.
    1. DAMAGED PRODUCTS MANIFEST ON UNPACKING
      1. The Seller accepts that damaged products may only be noticed upon unpacking the Products. Should the Purchaser contend that the damaged products were only manifest and identified on unpacking, then the Purchaser shall have 30 days from the Delivery Date within which to lodge a claim in respect of such alleged damaged products.
      2. In the event of the Purchaser wishing to lodge a damaged product claim in respect of damage manifest after delivery date, then, the Purchaser shall be obliged to contact the Seller (in writing i.e. by way of email or SMS) within 30 days from the Delivery Date setting out the alleged damaged products delivered with a photograph thereof (e.g. iPhone photograph).
      3. The Seller shall not accept any damaged products claims after the expiry of the 30 days from the Delivery Date.
      4. Upon receipt of such a damaged products claim, the Seller shall have the election to –
        1. arrange for an inspection of the alleged damaged products at the Purchaser’s premises; or
        2. accept the damaged products claim as set out in the Purchaser’s written submission (e.g. email and photographs); or
        3. not accept the damaged products claim with written reasons for such non-acceptance.
      5. At all times the Purchaser shall retain the alleged damaged products on hand until receipt of written instructions from the Seller as to whether the Seller wishes to uplift the damaged products or instruct otherwise.
      6. In the event of the Seller agreeing to accept a damaged products claim, the Seller’s sole liability shall be replacement of the damaged products or credit the Purchaser with the invoiced costs thereof.
      7. A manufacturing integrity claim can only be brought after the date of delivery of the Products by the owner of the premises where the products are installed whereafter any such claim will fall within the ambit of the Product Limited Warranties.
 
  1. DELAYS
    1. Cost of Delay in respect of direct shipments from the manufacturer –
      1. Should the Purchaser delay the shipping dates set out in the Shipping Date Notice or for any reason whatsoever including, but not limited to, non-payment by the Purchaser, then the Purchaser shall be liable for all warehouse, demurrage and other costs occasioned by such delay (“Costs of Delay”).
      2. Should the Purchaser delay the shipping dates beyond a period of 30 days from date of the Shipping Date Notice then, in addition to the Costs of Delay, the Purchaser shall be liable for penalty interest at 1.5% (one point five percent) per month or prorated per month as the case may be calculated and compounded daily on the value of the Confirmed Customer Sales Order from the date of the Shipping Date Notice.
      3. Should the Purchaser delay the Shipping Date by 60 days from the date of the Shipping Date Notice then the Seller shall be entitled to cancel the Confirmed Customer Sales Order and claim the value of the full purchase price of the Products ordered by the Purchaser in addition to the costs of the delay without prejudice to any other rights the Seller may have under these Eva-Last T&Cs or in law.
    2. Failure to accept delivery at the Purchaser’s premises –
      1. Should the Purchaser delay, or refuse to accept, the delivery of a Confirmed Customer Sales Order at the Purchaser’s premises beyond a period of 30 days then, in addition to the Costs of Delay, the Purchaser shall be liable for penalty interest at 1.5% (one point five percent) per month or prorated per month, as the case may be, calculated and compounded daily on the value of the Confirmed Customer Sales Order from the date of the delay/refusal to accept delivery until the subsequent date of delivery.
      2. Should the Purchaser delay or refuse to accept the delivery of a Confirmed Customer Sales Order at the Purchaser’s premises for a period of 60 days, then the Seller shall be entitled to cancel the Confirmed Customer Sales Order and claim the value of the full purchase price of the Products ordered by the Purchaser in addition to the costs of the delay without prejudice to any other rights the Seller may have under these Eva-Last T&Cs or in law.
    1. RETURNS The Purchaser may not return any Products without obtaining the Seller’s prior written consent to do so. A 25% handling fee will be charged on all products returned.
 
    1. INTELLECTUAL PROPERTY
      1. The Seller’s “Intellectual Property” means all intellectual property rights, such as, but not limited to, copyright, patents, trademarks, and designs relating to or in respect of the Products.
      2. All information in respect of, or in relation to the Seller’s Intellectual Property is acknowledged by the Purchaser as being proprietary to the Seller.
      3. The Purchaser shall not, at any time –
        1. put in issue or contest the validity of the Seller’s Intellectual Property; or
        2. do anything which may disparage or harm the Seller’s Intellectual Property.
 
    1. RELATIONSHIP BETWEEN THE SELLER AND THE PURCHASER The relationship between the Seller and the Purchaser is one of independent contracting parties. Nothing in these Eva-Last T&Cs shall be construed as giving rise to or creating a legal relationship of agency, partnership, association, trust or employment between the Parties.
 
    1. FORCE MAJEURE The term “Force Majeure” means supervening impossibility of performance attributable to a cause beyond the control of the Seller and shall include, but not be limited to, any events affecting supply and delivery of Products to the Purchaser, strikes, lockouts, other labour unrest, fire, explosions, floods, riots, civil commotion, unrest or disturbance, war, acts of God, embargoes, legislation, interruption in shipping and transportation and the non-availability of raw materials. In the event that the performance of the Seller is prevented by reasons of Force Majeure, the Seller shall be excused from compliance with its obligations for as long as and to the extent that, the performance of such obligations are prevented by Force Majeure.
 
  1. LIMITATION OF ACTIONS The Purchaser shall not have any action or claim of whatsoever nature against the Seller (other than in respect of the Product Limited Warranties) after 1 (one) year from the date of the accrual of such action and/or such claim.
    1. HEALTH AND SAFETY The Purchaser agrees to comply with OSHA – the Occupational Safety and Health Administration in the USA or in Canada the CCOHS – the Canadian Centre for Occupational Health and Safety and all related laws and regulations and requirements applicable to the Products and the use and transport thereof, including but not limited to all building codes and the Eva-Last Installation Guidelines on the Eva-Last website.
 
    1. PRODUCT LIMITED WARRANTIES
      1. The Products come with certain product limited warranties to and in favour of the owner (the “End-User”) of the premises where the Products, as purchased by the End-User, have been installed (hereinafter referred to as the “Product Limited Warranties”). All information relating to the Product Limited Warranties is accessible on the Eva-Last website, link for Canada: https://www.eva-last.ca/information-centre/warranty-and-claims/ or link for the USA: https://www.eva-last.com/us/information-centre/warranty/. The Product Limited Warranties are subject to and conditional upon the Products having been installed at the premises of the End-User strictly in accordance with the Product Installation Guidelines accessible on the Eva-Last website, link for Canada: https://www.eva-last.ca/informationcentre/installation/ or link for the USA: https://www.eva-last.com/us/informationcentre/installation/.
      2. The Seller’s sole liability under the Product Limited Warranties is the replacement of the defective products to be re-installed at the End-User’s cost or, at the election of the Seller, a refund of the original cost of the defective products adjusted and pro-rated to the length of time that the Products have been installed.
      3. The Product Limited Warranty is the only warranty given by the Seller in respect of and/or relating to the Products. All other warranties of whatsoever nature whether express, oral, tacit and/or implied are specifically excluded save for statutory warranties as may be applicable in USA legislation and/or Canadian legislation.
      4. It is further brought to the Purchaser’s attention, that the Products supplied fall within certain manufacturing tolerances in particular but not limited to, hue/shade, product characteristics such as those contained in the relevant technical data sheet, thicknesses, wall thicknesses, width and length. In addition packing dimensions may vary from time to time.
 
    1. LIMITATION OF LIABILITY
      1. The Seller’s liability shall not exceed the purchase consideration of the Products giving rise to any liability regardless whether such claim is based in contract, tort, warranty or howsoever arising.
      2. The Seller, its directors, employees, servants and contractors shall not be liable to the Purchaser for any personal injury or death of any person arising from, or relating to, the Purchaser’s execution of the buy and sell agreement between the Seller and the Purchaser, nor shall the Seller be liable for any loss, damage or damage to any property of the Purchaser or any third party howsoever arising. The Purchaser hereby indemnifies and holds the Seller harmless in respect of the aforesaid events.
      3. Under no circumstances shall the Seller be liable for any consequential damages or any indirect damages, including or not limited to, loss of profit, loss of business opportunities, loss of goodwill notwithstanding the Seller may have been advised as to the possibility thereof.
      4. The Purchaser shall be responsible for all costs incurred in procuring payment from the Purchaser including, but not limited to, attorneys costs and reasonable fees expended on collection services.
 
    1. DEFAULT In the event of –
      1. the Purchaser failing to pay any amount to the Seller on the due date in respect thereof (the “Due Date”) and failing to make such payment within 7 calendar days from date of written demand from the Seller demanding that the Purchaser do so;
      2. the Purchaser ceasing to conduct business;
      3. the Purchaser suffering a final judgment and failing to settle such a judgment within 14 calendar days from the judgement coming to the attention of the Seller,
      4. the Purchaser’s bankruptcy and/or the filing of voluntary or involuntary petition for bankruptcy by, or against, the Purchaser, or the appointment of a receiver or trustee for the Purchaser or the execution of an assignment for the benefit of creditors or any similar event,
      then notwithstanding anything to the contrary contained in these Eva-Last T&Cs and/or any other Separate Agreement between the Seller and the Purchaser, and notwithstanding that the Due Date for payment of any amount owing has not arrived, the full indebtedness of the Purchaser to the Seller shall immediately become due and payable by the Purchaser to the Seller. In addition the Seller shall be entitled to levy default interest on all amounts unpaid at a rate equal to the maximum permissible in law for the period commencing on the Due Date in respect thereof until payment is received from the Purchaser.
    2. GOVERNING LAW AND JURISDICTION These Eva-Last T&Cs are governed by, and shall be construed in accordance with, the laws of the State of Texas, USA without reference to principles of conflict of laws. The Seller and the Purchaser agree to submit to the exclusive jurisdiction of the State or Federal Courts located in Collin County in the State of Texas for the purposes of any action, litigation or proceedings of any kind whatsoever, arising in respect of or pursuant to these Eva-Last T&Cs.
 
    1. SEVERABILITY AND REFORMING If any of the provisions of these Eva-Last T&Cs are determined to be wholly or partially unenforceable, then the Purchaser agrees that these Eva-Last T&Cs or any provision hereof may be reformed so that it is enforceable to the maximum extent permitted by law. If any of the provisions of these Eva-Last T&Cs are determined to be wholly or partially unenforceable in any jurisdiction, such determination shall not be a bar to or in any way diminish the Seller’s right to enforce any such covenant in any other jurisdiction.
 
  1. GENERAL
    1. These Eva-Last T&Cs supersede all prior agreements (save for any Separate Agreement) and arrangements between the Parties, whether express, oral, tacit or implied relating to the subject matter of these Eva-Last T&Cs.
    2. These Eva-Last T&Cs constitute the sole record of Eva-Last Americas, LLC’s terms and conditions of sale. The Seller shall not be bound by any express, tacit or implied term, representation, warranty, promise or the like not recorded in these Eva-Last T&Cs.
    3. No addition to, variation, novation, waiver or agreed cancellation of any provision of these Eva-Last T&Cs shall be binding upon the Seller unless reduced to writing and signed by, or on behalf, of the Seller.
    4. No indulgence, or extension of time, which the Seller may grant to the Purchaser shall constitute a waiver of the Seller’s rights, whether by estoppel or otherwise, or limit any existing or future rights of the Seller in terms hereof, save in the event and to the extent that the Seller has signed a written document expressly waiving or limiting such rights.