1. Applicability. These terms and conditions of sale (these “Terms”) govern the sale of the goods and services by Thames River Chemical Corp. (“TRC”) to the buyer named on the credit application to which these Terms are attached (“Buyer”). In the event of any conflict between these Terms and any contract between TRC and the Buyer (any such contract being an “Agreement”), these Terms shall prevail to the extent they are inconsistent with such Agreement.
2. Limitation of Liability. In no event shall TRC’s aggregate liability arising out of or related to these Terms or any Agreement, whether arising out of or related to breach of contract, tort (including negligence), or otherwise, exceed the total cost of the products sold by TRC to the Buyer. The foregoing limitation shall apply even if remedies under any Agreement fail their essential purpose.
3. Dispute Resolution. All disputes and questions whatsoever which shall arise between any of the parties in connection with these Terms or any Agreement, or the construction or application thereof or any section or thing contained in these Terms or any Agreement, shall be resolved by arbitration. Such arbitration shall be conducted by a single arbitrator. The arbitrator shall be appointed by agreement between the parties or, in default of such agreement, such arbitrator shall be appointed by a Judge of the Superior Court of Justice sitting in Toronto, upon the application of any of the parties and such judge shall be entitled to act as such arbitrator, if he or she so desires. Unless otherwise agreed to by the parties, the arbitration shall be held in the City of Burlington. The procedure to be followed shall be agreed to by the parties or, in default of such agreement, determined by the arbitrator. The arbitration shall proceed in accordance with the provisions of the Arbitration Act, 1991 (Ontario). The arbitrator shall have the power to proceed with the arbitration and to deliver his or her award notwithstanding the default by any party in respect of any procedural order made by the arbitrator. The decision arrived at by the arbitrator shall be final and binding and no appeal shall lie therefrom. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
4. Miscellaneous. (a) These Terms shall be governed by and construed and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. (b) Any action or proceeding arising out of or relating to these Terms or any Agreement must be brought in the courts of the Province of Ontario. Each of the parties hereby irrevocably attorns to the non-exclusive jurisdiction of the courts of the Province of Ontario with respect to any matter arising under or related to these Terms and waives any objection it may now or hereafter have to venue or to convenience of forum. (c) If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. (d) These Terms may only be amended or modified in writing stating specifically that such document amends these Terms and is signed by an authorized representative of TRC.
