ONLINE SHOP GENERAL TERMS AND CONDITIONS
1 SCOPE OF APPLICATION
1.1 These General Terms and Conditions (the “GTC”y or sometimes, the “Online Shop GTC”):
i) apply to your use of Doka Canada, Ltd.’s (“Doka”) software and Doka’s online shop located at https://shop.doka.com (the “Online Shop”) including your use of all subdomains and websites belonging to or associated with this domain, whether owned and operated by Doka or by any corporation associated or affiliated with Doka. In these GTC, the online user is sometimes referred to as the “customer” or simply as “you”; and
ii) form an integral part of any agreement or other legal transaction handled via the Online Shop that is entered into between you and Doka, for your lease or rental or your purchase of either new or used materials (such as formwork accessories, wall and slab formwork and system components (sometimes called the “Products”)), by commercial (B2B) customers.
1.2 These GTC shall also apply to any future transactions entered into between you and Doka utilizing Doka’s software and the Online Shop, even if no further reference is made to these GTC when any future contract is entered into. If there is any inconsistency between these Online Shop GTC and Doka’s General Terms and Conditions, the more specific rules of these Online Shop GTC shall supersede and govern your online transaction.
1.3 If you have your own buyer’s or renter’s “general terms and conditions” or “conditions of purchase” or “conditions of lease/rental”, they shall not apply unless Doka has expressly accepted them in writing.
1.4 Doka reserves the right to amend these GTC at any time and from time to time without notice to you and without stating reasons. Doka shall endeavour to notify you of any amendment to these GTC via email if you have provided your valid email address (sometimes called the “customer’s email address”) in your Online Shop account. Continued use of the Online Shop shall be deemed to be your consent to all amendments of the GTC. If Doka has to revise these GTC as they apply to a purchase order (as defined in paragraph 5.2 of these GTC), Doka will endeavour to contact the customer via email using the customer’s email address in order to give notice of the changes and in order to let the customer know how to cancel the Contract (as defined in paragraph 5.4 of these GTC) in the event that the customer refuses to accept the changes. You may cancel that portion of the Contract relating to Products affected by the changes or alternatively, you may terminate that portion of the Contract relating to those Products that you have yet to receive. If you elect to cancel the Contract in respect of all affected Products, you will have to return to Doka (at Doka's cost) any relevant Products already received and Doka will arrange for a full refund of the price paid by you, including any delivery charges.
1.5 Doka reserves the right to update and change the Online Shop at any time. Doka does not guarantee that the Online Shop, or any content on it, will always be available or be uninterrupted.
1.6 Doka may temporarily or permanently suspend or withdraw or restrict the availability of all or any part of the Online Shop in its discretion including, without limitation, when performing routine or extraordinary maintenance, upgrading or dealing with security, if volume or capacity becomes a concern or when upgrading or making improvements generally.
1.7 Customers are responsible for ensuring that all persons who access the Online Shop through the customer's internet connection are aware of these GTC and of Doka’s General Terms and Conditions, and that all users comply with them.
1.8 Where the Online Shop contains electronic cross-references (“links”) to other sites and resources provided by third parties, such links are provided for information purposes only. These links open up access to third-party information and content which Doka at no time claims as its own. Such links should not be interpreted as an endorsement or an approval by Doka of those linked websites or of any content or information that may be obtained from them. Doka is not responsible for any such information or content, for which responsibility and liability rests solely with the respective website owner/operator. Before linking its website to a third-party webpage, Doka makes reasonable efforts to determine that there is no manifestly unlawful content on the linked page in question. However, Doka has no influence or control over the content and design of these linked pages, and continuous checking of the external links is not feasible. As soon as Doka becomes aware of any unlawful content on a linked website, the link(s) in question will be removed from the Online Shop without delay.
2.1 Elements of the Online Shop and of any and all subdomains and websites belonging to this domain, such as (but not limited to) text, pictures, photographs, logos, button icons, images, digital downloads, graphics and software are the property of Doka and are protected under Canadian and international copyright and intellectual and industrial property laws, as are all materials and other documents used in connection with the Online Shop. Such elements must not be copied or edited or used in any way other than as intended by Doka to facilitate the customer’s use and enjoyment of the Online Shop.
2.2 Customers may print off one copy, and may download extracts, of any page(s) from the Online Shop for use by their internal organization and may provide the content posted on the Online Shop to others within the customer's organization. Customers must not copy or modify the paper or digital copies of any materials printed or downloaded from the Online Shop in any way.
2.3 Customers may not use any part of the content of the Online Shop for commercial purposes without first obtaining a licence in writing to do so from Doka or from Doka's licensors.
3 Data Protection
3.1 Doka’s data protection provisions are downloadable from https://www.doka.com/en/home/dataprivacy/index and apply to and form an integral part of these GTC.
3.2 Without limiting the generality of Doka’s downloadable data protection policies, Doka uses customer data including, without limitation, customer’s first name, surname, title, email address, date of birth, login or user name, password, telephone number, telefax number, company name, contact person, commercial register number, credit card information, delivery address and billing address for emails and for mailings of advertisement of similar products or services from Doka and - for this purpose - Doka also transfers these data to Doka Ősterreich GmbH. The customer shall have the right to object to the use of its personal data for this purpose and may email details of its objection to firstname.lastname@example.org".
3.3 While Doka takes reasonable steps to safeguard and to prevent unauthorized access to your personal information (including your financial information), Doka cannot be responsible for the acts of those who gain unauthorized access, and Doka makes no warranty, express, implied or otherwise, that Doka will prevent unauthorized access to your private information. IN NO EVENT SHALL DOKA OR ITS AFFILIATES BE LIABLE FOR ANY DAMAGES OF ANY KIND (WHETHER CONSEQUENTIAL, DIRECT, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHERWISE) INCLUDING ANY LOST PROFITS, DATA, GOODWILL, OR BUSINESS OPPORTUNITY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, A THIRD PARTY'S UNAUTHORIZED ACCESS TO YOUR PERSONAL INFORMATION, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, STRICT LIABILITY, TORT OR OTHER THEORIES OF LIABILITY, AND ALSO REGARDLESS OF WHETHER DOKA WAS GIVEN ACTUAL OR CONSTRUCTIVE NOTICE THAT DAMAGES WERE POSSIBLE.
4 REGISTRATION OF CUSTOMERS, AUTHORIZATIONS, IDENTITY CHECKS AND AUTHORITY OF REPRESENTATION
4.1 All customers are required to create an online account in order to use the Online Shop, which can be accomplished by entering the mandatory information into the online form. All data supplied by customers must be accurate, complete, truthful and in compliance with all applicable laws.
4.2 Following initial registration, each customer is assigned a user name and password (login data) for subsequent use when logging on to the Online Shop. It is possible to create several users with different authorizations for one customer. It is the responsibility of the customer to setup and maintain the customer‘s own internal processes to authorize individual users of the customer’s account with the Online Shop. Doka accepts no liability whatsoever with regard to the allocation and use of such authorizations nor with regard to any of the customer’s internal approval processes. All users confirm that they have authority to contractually bind the customer in order to purchase or to rent Products. Customers irrevocably agree to be responsible for and liable for all transactions entered into in the Online Shop by any user who accessed the Online Shop through the customer’s account.
4.3 Doka shall have the right to verify, at any time and without stating reasons, the identity of the user logging on to the customer’s account with the Online Shop and may also request adequate proof to be supplied of the identity of a user and of such user’s power and authority to bind the customer (business licence, power of attorney, commercial register excerpt, directors’ resolution etc.).
4.4 Customers shall be obliged to maintain the confidentiality of their Online Shop account information and login data and protect all of this confidential information against unauthorised access by employees and by third parties. Customers shall notify Doka in writing immediately upon becoming aware of any misuse or unauthorised use of such customer’s account. Until such notification, any access operation and any action or use of services related to such access operation (including, without limitation, any transactions effected through the Online Shop) shall be attributed to (and be the sole obligation of) the customer in question. Doka reserves the right to close accounts, terminate login privileges, disable any user’s access, change password or login credentials, remove or edit content or cancel orders in its discretion including, without limitation, if a customer is suspected of having failed to comply with any terms or conditions of these GTC.
4.5 If customers do not perform any operations and do not visit the Online Shop for a year or more, the customer account in question may be disabled or removed. However, each customer is invited to register a new customer account with the Online Shop at any time.
5 OFFERS, PURCHASE ORDERS, CONTRACTS, TYPES OF PAYMENT, BILLING
5.1 The images of the Products in the Online Shop are for illustrative purposes only. Although every effort has been made to display the colours accurately, Doka cannot guarantee that the customer's computer displays the colours accurately and reflects the actual colour of the Products. The Products may vary slightly from those images and the packaging of the Products may vary from that shown on images in the Online Shop. Product availability displayed in the Online Shop shall not be binding on Doka.
5.2 The Online Shop will guide customers through the steps required in order to place an order (sometimes called a “purchase order”) with Doka which will include (by way of example only) Product selection, purchase or rental of the Product, type of delivery (delivery to or pick up by customer), date of delivery (or the date that the customer will pick up the Products from Doka - sometimes called the Product “collection date”) and the preferred method of payment. A customer’s purchase order constitutes an offer by that customer to purchase or rent the Products in accordance with these GTC. Once a purchase order has been submitted, the customer shall receive a preliminary order confirmation. Note, however, that such a preliminary order confirmation is not (and shall not be deemed to constitute) an acceptance of the offer constituted by the purchase order. Doka shall first endeavour to confirm Product availability, its ability to meet the preferred delivery date or collection date, its satisfaction with the preferred method of payment and compliance with any purchase or rental limits that may exist with respect to the customer or that Product. Customers may view the status of their purchase orders in the Online Shop at any time.
5.3 The purchase order shall be accepted (and shall be deemed to be accepted) by Doka only when Doka’s authorised representative issues a written acceptance of the purchase order. Doka may, but shall not be obligated to, email such acceptance of the purchase order to the customer at the customer’s email address.
5.4 Upon such acceptance, a valid and binding contract between Doka and the customer for the sale and purchase or rental of the Products in accordance with these GTC (hereinafter called the “Contract”) will be formed. Should Doka fail to communicate its written acceptance of the purchase order, the Contract shall nevertheless become binding and enforceable on the earlier of the date that Doka makes the Products available to the customer for pick up on the collection date or the date that Doka delivers the Products to the customer. Without limiting the generality of the forgoing, quotation of prices of Products supplied by Doka shall not constitute an offer, and shall merely be non-binding pricing unless explicitly designated by Doka as being binding.
5.5 It is the customer’s sole responsibility to ensure that the terms of any purchase order submitted to Doka are completely accurate including, without limitation, the accuracy of any agreed specification and all other Product information. The customer must give advance notice to Doka if there is any correction to be made by the customer or if there is further information Doka requires to be able to perform the Contract. Any losses or expenses Doka may incur as a result of the customer's failure to comply with this paragraph 5.5 shall be immediately payable by the customer and the customer agrees to indemnify and save Doka harmless from any and all such losses and expenses.
5.6 The quantity, description and/or specification of the Products shall be set out in the customer’s purchase order. Doka reserves the right to amend the specification of the Products if required by any applicable statutory or regulatory requirements.
5.7 If Doka is unable to supply a Product, for example, because that Product is not in stock or no longer available or because Doka cannot meet the customer's requested delivery or collection date or because of an error in the price on the Online Shop, Doka will inform the customer by email sent to the customer’s email address, or by telephone, that Doka will not process the customer's purchase order. If the customer has already paid for the Products, Doka will refund the full amount including any delivery costs charged as soon as reasonably practicable.
5.8 Doka may, at any time and without stating reasons, refuse to enter into a Contract without any claim for compensation arising therefrom on the customer’s behalf.
6 INVOICES AND PAYMENT
6.1 Invoices will be available on the Online Shop for customer viewing and downloading and may be transmitted to a customer electronically via email to the customer’s email address. Invoices shall be deemed to have been delivered to and received by a customer on the earlier of the date that they can be accessed in the Online Shop and the date of actual receipt by the customer, whether received in paper format or in electronic format (for example, via email). Should customers wish to receive invoices on paper, Doka reserves the right to charge a fee (such as a handling fee) for each invoice printed and sent on paper. Where invoices are to be sent electronically, these invoices will be forwarded to the customer using the customer’s email address.
6.2 Rented Products will be invoiced monthly by Doka on the last day of each month. Invoices are due and payable by the customer immediately upon the customer’s receipt of such invoice (as established in paragraph 6.1 of these GTC) without set off, abatement or adjustment whatsoever. Without limiting the generality of the foregoing, Doka reserves the right to require customers to pay for rented Products by using the customer’s credit card or debit information on record in the customer’s account in the Online Shop following Doka’s delivery to and the customer’s receipt of each invoice by the customer (as established in paragraph 6.1 of these GTC).
6.3 Purchased Products must be paid for in full by the customer before the customer is entitled to pick up or receive delivery of such Products. Payments may be made by credit card or debit. Whether Products are purchased or rented, all the relevant credit or debit information must be supplied by the customer when submitting a purchase order. It is the customer’s sole responsibility to ensure that it is able to process credit card payments or debit payments and that neither method of payment is blocked nor expired. Any delay in payment shall be attributable to the customer, and the customer will be liable to pay default interest in accordance with paragraph 13.1 of these GTC.
6.4 Existing customers who have established with Doka both exemplary credit and a pattern of prompt payment may request that Doka consider allowing such customer to be invoiced for purchased Products. It shall be in Doka’s discretion whether it allows purchased Products to be delivered to or picked up by a customer prior to full payment. But if such payment arrangements are made with a customer, then such customer shall pay for the Products in full on receipt of Doka’s invoice for such Products (such receipt as established in paragraph 6.1 of these GTC) without set off, abatement or adjustment whatsoever.
6.5 All payments by customers may be applied and reapplied by Doka to any one or more invoice or invoices outstanding, in Doka’s discretion, notwithstanding any requested allocation by the customer (which allocation shall neither be binding upon nor enforceable against Doka). If there is any dispute as to allocation Doka may (but shall not be obligated to) apply each payment to the oldest unpaid invoices.
7.1 All prices in the Online Shop are quoted excluding federal, provincial and municipal sales, goods and services or other value added taxes. All such taxes will be billed separately in accordance with applicable laws and regulations. Customers shall be solely responsible for all import and export duties, fees and taxes.
7.2 Cost to the customer of delivery and transport depend on the delivery destination and type of delivery chosen by the customer. Likewise, the price of a Product may vary depending on the chosen delivery address and type of delivery. Final pricing shall be communicated to the customer during the purchasing process via the Online Shop.
7.3 If a valid and enforceable framework or other agreement is in effect (and in good standing) between Doka and the customer, and not in default, and if the rental price of one or more Products cannot be displayed in the Online Shop due to technical or other reasons, Doka may, as an exception, and in its discretion, refer to the framework or other agreement for pricing instead of stating the monthly rental price in the Online Shop.
7.4 Doka reserves the right to increase the price of the Products if the customer changes the Contract including, without limitation, any change to the method or to the timing of delivery, the delivery dates, the quantities or types of the Products required, the agreed specifications, the customer's instructions to Doka generally or in the event of any failure to give Doka adequate instructions or information which causes any delay to Doka.
7.5 The Online Shop contains a large selection of Products. It is always possible that despite Doka's reasonable efforts, some of the Products offered in the Online Shop may be incorrectly priced. If Doka discovers an error in the price of the Products that the customer has ordered, Doka will contact the customer to advise the customer of this error and Doka will give the customer the option of continuing to purchase or rent the Product at the corrected price or, alternatively, to cancel the order altogether. Doka will not process the customer's order until it has the customer's instructions. If Doka is unable to contact the customer using the contact details provided during the order process, Doka will treat the order as cancelled and notify the customer via the Online Shop or, at Doka’s option, via email at the customer’s email address. If Doka mistakenly accepts and processes the customer's order where a pricing error is obvious and unmistakeable and ought to reasonably have been recognised by the customer as a mispricing, Doka may cancel supply of the Product and refund the customer any amounts it has paid.
8 DELIVERY AND PASSING OF RISK
8.1 Customers have the option of picking up the Products or having Doka deliver the Products to the customer’s specified place of delivery.
8.2 If a customer elects in a purchase order to pick up the Products, the customer shall do so on the agreed collection date at the agreed time from the Doka branch establishment closest to the address indicated by the customer in the purchase order or from any other address expressly agreed upon by Doka and the customer.
8.3 If a customer elects in a purchase order to take delivery of the Products, Doka shall deliver the Products to the address indicated in the purchase order. If no address was provided by the customer in its purchase order, then the customer shall have to create a new purchase order using the Online Shop, including a correct address for delivery.
8.4 The risk of loss or accidental damage to the Products shall pass to the customer immediately upon handover to the customer or to any third party acting as agent (or purporting to act as agent) of the customer.
8.5 No delivery can occur until the cost of delivery, the manner of payment and place(s) of delivery have been expressly agreed to in writing by the customer. Delivery to the agreed upon place of delivery (including the customer’s construction site) shall be completed within a reasonable period of time after ordering or within any other delivery periods or at any other delivery dates agreed to in writing by the customer. All delivery periods and delivery dates shall be approximate periods and dates and Doka shall not be responsible for and shall have no liability for any delay in delivery or with respect to any other delivery issues whatsoever. Customers acknowledge and agree that the supply and delivery of the Products shall be at the customer’s sole risk. All risk of loss or damage to the Products shall pass to the customer upon Doka’s handover of the Products to the carrier (for delivery to the customer).
8.6 Should the Products not be ready for delivery by Doka or not be available for customer’s pick up in either case for more than two weeks after the agreed upon delivery date or the agreed upon collection date then the customer shall, except in case of force majeure, be entitled to rescind the Contract after giving Doka at least 10 business days’ written notice of its intention to do so.
8.7 Should the customer refuse to take delivery of the delivered Products, the customer shall ensure that the Products are duly unloaded, stored and held at Doka’s disposal (but at customer’s sole cost and expense).
8.8 Force majeure or other events or circumstances obstructing or delaying delivery of the Products or the readiness for pickup of the Products on the collection date, shall result in Doka being entitled, in its sole and unfettered discretion, to extend the period for making delivery or to extend the collection date to a future time and date that is specified by Doka, acting reasonably.
8.9 Doka shall have the right to make partial deliveries.
9 RETURN OF RENTAL PRODUCTS
9.1 When rental Products are returned to Doka, Doka shall sign and deliver to the customer a return delivery note (sometimes called the “Return Note”), confirming Doka’s receipt of the returned Products. The Return Note shall not (and shall not be deemed to) deal with or comment on the quantity nor the quality of the Products so returned. In the event of any discrepancies between the quantities of the Products as stated in the Return Note and the quantities actually received by Doka, only the quantities actually returned to and received by Doka shall be deemed to have been returned.
9.2 The customer acknowledges and agrees that rental fees account for normal wear and tear to the rental Products assuming appropriate use; appropriate use requires, in any case, full compliance with Doka’s relevant instructions for mounting and use. The customer shall request such instructions from Doka, and Doka shall provide such instructions to the customer free of charge upon written request from the customer.
9.3 All rented Products shall be returned to Doka in a clean, undamaged and reusable condition corresponding to Doka’s quality criteria applicable at the time of such return. The customer agrees to be liable for and to reimburse Doka for the costs of cleaning the returned Products if Doka, in its discretion, determines that such cleaning is necessary or desirable. The customer also agrees to be liable for and to reimburse Doka for the costs of repairing any damaged or unusable returned Products if Doka, in its discretion, determines that such repair is necessary or desirable. It shall always be in Doka’s discretion to determine whether returned Products are to be repaired or are not reusable and cannot be repaired. Doka shall provide the customer with the applicable quality criteria free of charge upon request.
9.4 If any returned Products are not reusable and cannot be repaired by Doka or if any one or more of the rental Products are not returned by the customer, then the customer shall reimburse Doka accordingly by immediately paying to Doka the rental Products’ replacement value (determined by Doka in accordance with Doka’s sale prices for those Products applicable at the time of return, less a discount for used goods in the amount of 15%). Nothing in this paragraph 9.4 shall affect or reduce any unpaid amounts owing by the customer to Doka for the Products rented. The reimbursement by the customer does not give the customer any ownership title to the damaged rental Products, unless expressly agreed to by Doka on a case-by-case basis. Additionally, the customer shall also bear the costs for disposal of all of the unusable rental Products; such costs to be irrevocably determined by Doka.
10 RENTAL PERIOD
10.1 The minimum rental period shall be one month, unless Doka agrees to a shorter rental period in the Contract.
10.2 The rental of the Products shall begin on the earlier of the collection date and the date of the handover of the Products by Doka to the carrier (for delivery to the customer).
10.3 The rental of the Products shall end on the day the Products are returned to the contractually agreed warehouse of Doka and a Return Note is issued by Doka to the customer. The day on which the Products are picked up or the day on which Doka hands over the Products to the carrier (for delivery to the customer) as well as the day on which the Products are returned to Doka and a Return Note is issued by Doka to the customer, shall each count as one full rental day.
10.4 The risk that the customer may be unable to employ and use rented material due to bad weather or other outside influences shall be borne exclusively by the customer.
10.5 The obligation to pay a rental fee for each Product shall only cease on the later of the day that that Product is returned to Doka and a Return Note is issued by Doka to the customer, and the last day of the rental period for that Product set out in the Contract.
11 PASSAGE OF OWNERSHIP, RETENTION OF TITLE
11.1 Doka shall retain title to all purchased Products until the purchase price for each Product has been paid in full. Any delivery or pick up of purchased Products to or by a customer or to any third party acting as agent (or purporting to act as agent) of the customer that are not fully paid for shall be subject to Doka’s retention of title. Doka shall always retain ownership of rented Products.
11.2 Ownership of the purchased Products shall pass to the customer only upon full payment of the purchase price for such Product and the customer or a third party acting as agent (or purporting to act as agent) of the customer taking delivery of (or picking up) the purchased Product.
11.3 Ownership shall also extend to any new items produced through the processing of the delivered Products. Upon processing, combination or commingling of the Products, Doka shall acquire co-ownership of the personalty thus produced proportionate to the value of the delivered Products in relation to the newly created item of personalty.
11.4 Customers shall not create a security interest in or otherwise encumber the purchased Products (unless fully paid for) or the rented Products (such unpaid for purchased Products and such rented Products being sometimes collectively called the “Title Retention Products”) or to use Title Retention Products as collateral or otherwise to dispose of Title Retention Products to third parties. The resale of Title Retention Products shall not be permitted under any circumstances except with Doka’s express written consent. Notwithstanding the generality of the foregoing prohibition, each customer irrevocably assigns and transfers to Doka any and all receivables owing to the customer from the reselling of any of the Title Retention Products, whether such resale is in breach of this paragraph or was effected with Doka’s express written consent. Such assignment and transfer shall secure all amounts then or thereafter owing by the customer to Doka, whether owing with respect to the Title Retention Products or otherwise.
11.5 The terms and conditions of paragraph 11.4 of these GTC shall apply, mutatis mutandis, to new items of personalty in which Doka acquires co-ownership in accordance with paragraph 11.3 of these GTC. Customers shall include notes to this effect in their books and outstanding receivables lists and shall, upon Doka’s request, disclose to Doka the names and addresses of the buyers as well as the number and amount of receivables arising from each such resale. Furthermore, the customer shall notify their buyers in writing of the assignment of such receivables. Any profits made by customers on the resale of these ‘co-ownership’ Products shall be the sole property of Doka and shall be delivered to Doka without delay.
11.6 If any of the Title Retention Products are seized or otherwise claimed by any third party or parties, customers shall be obliged to (and agree to) assert Doka’s right of ownership and to notify Doka in writing of any seizure or claim without delay. Customers agree to indemnify Doka and to save Doka harmless from and against any and all costs and expenses incurred by Doka in protecting its right of ownership of the Title Retention Products. Upon request by Doka, customers shall make available to Doka any and all documents required by or requested by Doka for protecting and asserting its title to the Title Retention Products.
12 DOCUMENTS, NON-DISCLOSURE OF EXPERTISE, BAN ON REVERSE ENGINEERING, DOWNLOAD OF DOCUMENTS
12.1 Customers shall only use the documents or electronic information provided by or made available by Doka (including, without limitation, user manuals, operating instructions and user information generally) solely for their intended purposes or as otherwise provided for in the Contract and for no other purposes whatsoever.
12.2 All of such information (whether electronic or otherwise) provided by Doka to the customer is provided on a strictly confidential basis and shall be treated as such at all times by the customer. Subject to, but without limiting the generality of the foregoing, the customer shall not (and agrees not to) use any such confidential information (provided in any form whatsoever) for the purpose of reverse engineering the Products.
12.3 It is the customer’s sole and exclusive responsibility to download all necessary documentation (including, without limitation, user manuals, operating instructions and user information generally as well as other documents for which Doka has an obligation to make available to the customer) from the download section of the Online Store. Doka accepts no liability whatsoever for customers downloading all of the necessary or recommended document in the correct language for the Product or Products in question.
13 DEFAULT AND INTEREST
13.1 All amounts owing by the customer to Doka under a Contract shall be due and payable in accordance with the Contract and with these GTC and shall bear interest at the prime rate of Royal Bank of Canada plus 9.2% per annum (calculated and compounded annually) commencing on the due date of such amounts owing.
13.2 If the customer fails to fulfil and satisfy each and every term and condition set out in a Contract or in these GTC including, without limitation, failure to pay in full any amount owing to Doka when due or failing to accept delivery of Products on the agreed delivery date or failing to pick up Products on the collection date, then the customer shall be in default (sometimes called a “default”) and Doka shall be entitled to enforce its rights and to exercise its remedies under the Contract.
13.3 Customers shall reimburse Doka for all costs and expenses incurred by Doka in recovering amounts owing by the customer (whether under the Contract or otherwise) and in enforcing its rights and exercising its remedies under the Contract including, without limitation, any debt collection cost or expense, court fees and legal fees, disbursements and taxes on a full indemnity basis.
13.4 Doka shall be under no obligation to deliver or make available for pick up any additional Products while a customer is in default under any Contract including, without limitation, default in the payment of invoiced amounts or default in the payment of interest or expenses or any other amounts owing or payable to Doka.
13.5 Upon the occurrence of a default, Doka shall have the right (but not the obligation): (i) to terminate the Contract with respect to which the default relates, (ii) to terminate any one or more other Contract(s) with the same customer, (iii) to enforce its rights and exercise its remedies provided for in the Contract or at law or in equity, (iv) to demand that all Title Retention Products be returned to Doka without delay, and (v) to seize and obtain possession of any or all of the Title Retention Products (by any method permitted by law) and the customer grants to Doka an irrevocable licence to enter upon any real property where any of the Title Retention Products are located in order to do so. The customer agrees to be responsible for and to assume full liability for all risks associated with the seizure of the Title Retention Products and the return of the Title Retention Products to Doka’s warehouse including, without limitation, to pay on demand all costs and expenses associated with transporting the Title Retention Products to Doka. Without limiting the generality of the foregoing, seizing or obtaining possession of the Title Retention Products shall not be (and shall not be deemed to be) a rescission or other termination of Contract. Once these Title Retention Products are in Doka’s possession, Doka shall have the right to sell these Title Retention Products to a third party and to set off the proceeds of such sale against amounts due and payable to Doka by the customer in default. Doka shall endeavour to (but shall not be obligated to) notify the customer of Doka’s intention to resell the Products and of the suggested resale price. Customers may advise Doka of any potential buyers of these Title Retention Products, but Doka shall have no obligation to sell the Title Retention Products to the entity named by the customer in this paragraph.
13.6 Doka may exercise any one or more if its remedies following a customer’s default in any order and any time or from time to time and to the exclusion of other remedies, all in Doka’s discretion.
14.1 Doka may also rescind the Contract on notice to the customer if Doka is prevented by force majeure or by other commercially reasonable event (such as, but not limited to, insufficient Product supply) from performing the Contract, even if such event only exists (or is only anticipated to exist) for a limited period of time.
15 FORCE MAJEURE
15.1. If either DOKA or the Customer (hereafter called a “party”) provides evidence satisfactory to the other that its performance of any of its obligations under this Agreement (other than the payment of amounts owing to DOKA) is prevented by reason of any event or combination of events beyond its reasonable control (hereafter called an “Event” or “Events”) as provided for below, it shall be entitled to relief from performing each such obligation under this Agreement for such period as the Event or combination of Events continues to prevent performance.
15.2. Neither party shall be entitled to claim relief in respect of any period during which it could have complied with any obligation (or any part thereof) by using reasonable commercial efforts to avoid, overcome or minimize wholly or partly the effects of the Event or combination of Events.
15.3. In order for an Event to be beyond the reasonable control of a party, the Event must result directly from an act of God; act of war (whether or not formally declared); foreign invasion or act of foreign enemies; riot; civil strife; act of terrorism (whether domestic or foreign); embargo; governmental rule, regulation or decree; shortage of gas, electricity or other fuel; natural disaster such as earthquake, flood, fire, hurricane, tornado, or other inclement weather; strike, lockout, or other labour disturbance or the shortage or unavailability of labour or materials; loss of data due to power failures or the unavailability of accessing information storage or retrieval systems resulting from third party (hacker) actions; changes in laws including government regulations; or the failure of any third party supplier, contractor or subcontractor to perform its or their obligations or contractual commitments; or any other events or circumstances not within the reasonable control of the party affected, whether similar or dissimilar to any of the foregoing and shall include, without limitation, a declared pandemic by the World Health Organization.
15.4. No party will be liable for nonperformance of any of its obligations under the Agreement (other than the payment of amounts owing to DOKA) if its nonperformance was due to an Event and: (i) such Event is beyond the nonperforming party’s reasonable control; and (ii) occurs without the nonperforming party’s fault or negligence; and (iii) is not caused directly or indirectly by the nonperforming party; and (iv) could not have been prevented or avoided by the nonperforming party’s reasonable diligence; and (v) notwithstanding its reasonable commercial efforts to attempt to perform such obligations (other than the payment of amounts owing to DOKA), the nonperforming party was not able to avoid, overcome or minimize wholly or partly the effects of the Event or combination of Events.
15.5. Upon occurrence of an Event, the non-performing party shall promptly notify the other party that an Event has occurred, and its anticipated effect on performance, including its expected duration. The non-performing party shall furnish the other party with detailed written periodic reports regarding the progress of the Event. The non-performing party shall use reasonable diligence to minimize damages and to resume performance.
15.6. If an Event continues for more than 180 consecutive days, then the other party (but not the nonperforming party) may terminate this Agreement upon written notice to the nonperforming party.
15.7. Notwithstanding the generality of the foregoing, nothing in these General Terms and Conditions operates to excuse either party from the prompt payment of amounts owing under the Agreement, nor will a lack of financial resources or financial ability on the part of either party be or be deemed to be an Event, including (without limitation) any bankruptcy, insolvency or other creditor protection action taken by or against either party.
16 PRODUCT RETURNS
16.1 Upon rescission of a Contract, any Products already delivered to or picked up by the customer shall be returned to Doka within 14 days, at the customer’s sole risk and sole expense. If a customer fails to return Products to Doka under this paragraph, then Doka shall have the right (but not be obligated) to seize and obtain possession of any or all of such Products (by any method permitted by law) and the customer grants to Doka an irrevocable licence to enter upon any real property where any of the Products are located in order to do so. The customer agrees to be responsible for and to assume full liability for all risks associated with the seizure of the Products and the return of the Products to Doka’s warehouse nearest the customer including, without limitation, to pay on demand all costs and expenses associated with transporting the Products to Doka.
16.2 If the Products to be returned to Doka under paragraph 15.1 of these GTC are fungible goods (which cannot be unambiguously differentiated) then Doka shall have the right to seize and to take possession of one or more Product or other products of its choice (indistinguishable from the Products) under paragraph 15.1 of these GTC. In such an event, the customer indemnifies Doka and agrees to save and hold Doka harmless from and against any third-party claims associated with Doka exercising its rights under this paragraph.
17 WARRANTY, MISTAKE AND LIMITS OF LIABILITY
17.1 The laws of certain jurisdictions (including Quebec’s Consumer Protection Act) do not allow certain limitations on implied warranties or conditions, or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the following disclaimers, exclusions or limitations might not apply to you and you might have additional rights.
17.2 Doka expressly warrants to you that with respect to Products sold by Doka, as of the date of shipment (a) those Products will comply with the description set out in the Contract and (b) those Products will be of good quality and free from defects in material and workmanship under normal use and service. If any inherent defects in design, workmanship or materials shall be discovered by you and you give Doka a detailed written description of such defects within the first eight days of taking delivery of or inspection of such Products (whichever first occurs) and before you use any of the (allegedly) defective Products, Doka shall, in its discretion, subject to this article 16 of these GTC, either repair or replace such defective Products at Doka’s own expense, F.O.B. Doka’s closest warehouse to you. Any such repair or replacement by Doka shall constitute the sole remedy to you and Doka’s sole liability to you whether on warranty, contract or negligence.
17.3 You may not make any repairs or alterations to the Products without Doka’s express written consent. No warranties shall apply (and all warranties, whether express or implied, shall be null and void) if the Products have been rented by you or if the Products are subjected to other than normal and proper installation, operation and maintenance in conformity with normal industry practice or instruction provided Doka or if subjected to unauthorized repair or alterations. With respect to components and parts not manufactured or fabricated by Doka, our warranty obligation shall, in all respects, conform and be limited to the warranty actually extended to Doka by its supplier.
17.4 TO THE EXTENT PERMITTED BY APPLICABLE LAW, DOKA DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE NOT SPECIFIED HEREIN, RESPECTING THE CONTRACT AND THE PRODUCTS PURCHASED OR RENTED FROM DOKA.
17.5 Doka shall assign to you all manufacturer’s warranties for goods not manufactured or fabricated by Doka, and Doka shall take all reasonable steps as required by such third party manufacturers/fabricators to effect assignment of such warranties to you.
17.6 All claims by a customer under warranty for notified defects must be commenced in a court of competent jurisdiction in the province in which the customer intends to use the Products on the earlier of: (i) six months following the customer having knowledge of the defect; and (ii) six months after the customer became aware or ought to have become aware of the defect; failing which the claim shall be forever barred. Without limiting the generality of the foregoing, all claims by a customer under warranty must be commenced in a court of competent jurisdiction in the province in which the customer intends to use the Products within two years after the customer took or received delivery of the Products, failing which the claim shall be forever barred.
17.7 A notice of a defect by a customer does not discharge that customer from its obligations under the Contract. In order for Doka to be liable under any claim (whether under warranty or for breach of contract or otherwise), the customer must not be in default under the Contract (including all amounts owing by the customer under that Contract shall have been fully paid) and the customer must have notified Doka in writing of the defect or defects in reasonable detail and in accordance with the time limitations set out in paragraphs 16.2 and 16.6 of these GTC.
17.8 The burden of proving the existence of defects in or to the Products shall lie with the customer.
17.9 The fact that Doka may enter into negotiations relating to alleged (or actual) defects or relating to customer complaints shall not imply or constitute a waiver of any of Doka’s rights including its right to raise the objection that the notice of the defect or defects was made too late or lacked adequately detailed specificity or any other objection whatsoever.
17.10 A customer’s recourse to Doka under warranty shall be excluded if the customer has resold the Products. Unless there are statutory provisions to the contrary which cannot be excluded by contract, customers shall likewise exclude any such right of recourse vis-à-vis buyers of the Products from the customer.
17.11 As a matter of principle, rented material is used material; the delivery of used material as such does not constitute a defect, which is why the customer does not have a right to claim delivery of new material, unless expressly agreed in writing by Doka.
17.12 DOKA DOES NOT WARRANT THAT IT’S SOFTWARE OR THE ONLINE SHOP OR ANY INFORMATION, CONTENT, MATERIALS OR SERVICES PROVIDED VIA THE ONLINE SHOP OR VIA EMAIL OR VIA ANY OTHER ELECTRONIC COMMUNICATION ARE FREE FROM VIRUSES OR OTHER HARMFULL COMPONENTS. DOKA AND ITS AFFILITATES ARE NOT LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF DOKA’S SOFTWARE OR THE ONLINE SHOP OR FROM ANY INFORMATION, CONTENT, MATERIALS OR SERVICES INCLUDED IN OR OTHERWISE MADE AVAILABLE THROUGHT DOKA’S SOFTWARE OR THROUGH THE ONLINE SHOP INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL, DIRECT, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHERWISE, AND INCLUDING ANY LOST PROFITS, DATA, GOODWILL, OR BUSINESS OPPORTUNITY ARISING OUT OF, OR IN ANY WAY CONNECTED THEREWITH.
17.13 IN ADDITION TO THE LIMITS OF LIABILITY SET OUT ELSEWHERE IN THESE GTC, DOKA SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSION OR FOR NEGLIGENCE WHATSOEVER, AND ANY SUCH LIABILITY OR RESPONSIBILITY SHALL BE EXCLUDED. ALL LOSSES AND DAMAGES, WHETHER RESULTING FROM ANY WARRANTY OR OTHER CLAIM OR FROM ANY FAILURE TO PERFORM ALL OR ANY PART OF THE CONTRACT OR OTHERWISE, SHALL BE LIMITED TO THOSE REASONABLY FORESEEABLE AND WHICH FLOW DIRECTLY FROM SUCH FAILURE OR FAILURE TO PERFORM. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET OUT ELSEWHERE IN THESE GTC, DOKA’S LIABILITY TO YOU AND TO ANY OTHER PERSON SHALL BE LIMITED TO THE AMOUNT INVOICED FOR THE RELEVANT CONTRACT; AND DOKA IS NOT LIABLE TO THE CUSTOMER OR TO ANY OTHER PERSON WHATSOEVER FOR ANY CONSEQUENTIAL, DIRECT, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER DAMAGES, INCLUDING ANY LOST PROFITS, DATA, GOODWILL, OR BUSINESS OPPORTUNITY FOR ANY MATTER RELATING TO THE CONTRACT.
17.14 The customer agrees to indemnify, defend and holds Doka and its affiliates, and their respective officers, directors, employees, consultants and agents (collectively called the “Doka Indemnified Parties”) harmless from and against any and all claims, demands, fines, losses, damages, costs, expenses, actions, legal fees and all other liabilities brought against or incurred by the Doka Indemnified Parties or any of them arising out of: (a) death or bodily injury, or the loss or damage to real or tangible personal property, resulting from the use of or any actual or alleged defect in the Products, or from the failure of the Products to fully comply with the warranties hereunder; (b) any claim that the Products infringe or violate the intellectual property rights or other rights of any person; (c) the customer’s breach of any of its obligations under the Contract; or (d) any liens or encumbrances relating to any of the Products
17.15 These GTC may be different from what you know or understand about Doka’s Online Shop. These GTC (and any Contract formed) constitute the entire agreement between you and Doka regarding your utilization of the Online Shop, and your purchase or rental of Products from the Online Shop and shall supersede all previous “GTC” versions. Except as expressly set out in these GTC, there are no conditions, representations, warranties, express or implied, statutory or otherwise relating to the Contract or to the Products. When you deal with Doka over the internet, you consent to the formation of contractual relations through electronic communications. Doka is the final authority as to the interpretation of these GTC and as to any other questions or disputes regarding Online Shop and Contracts.
17.16 Doka authors and maintains the contents of its website including Online Store with the greatest possible care. Nevertheless, Doka takes no responsibility for the information provided on its website, and excludes any and all liability for information which may be found to be incorrect or incomplete on the Doka website. Responsibility for the manner in which the information provided (and thus freely available) on the Doka website is used and handled lies solely with the customer. Doka shall make available the contents of its website free of charge until further notice, as information only, and stresses that the mere act of using the website does not establish any contractual relationship between the customer and Doka whatsoever. Customers wishing to make use of special applications (e.g. Doka Download Centre, Fresh-Concrete Pressure Calculator) must first accept separate terms and conditions of use.
18 NO OFFSETTING
18.1 Customers shall not have any right to set off from amounts owing to Doka any amounts due to the customer from Doka, unless the relevant claims are both uncontested and are the subject of a final judgment by a court of competent jurisdiction (with no appeal rights available or outstanding).
19 SEVERABILITY CLAUSE
19.1 If, for any reason whatsoever, one or more provisions of these GTC or of any Contract are or become invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining provisions. Any invalid or unenforceable provision shall be automatically replaced by a provision that is valid and enforceable and that comes as close as possible to the intended purpose of the invalid or unenforceable provision. The same shall apply, mutatis mutandis, to any gaps in the provisions of the Contract.
20 GOVERNING LAW, PLACE OF PERFORMANCE, PLACE OF JURISDICTION
20.1 Any and all Contracts between Doka and the customer shall be subject to the laws of the province or territory of Canada in which the customer intends to use the Products. If there is more than one such province or territory, then the laws of the province or territory in which the Products were delivered by Doka or from which the Products were picked up by the customer shall apply.
20.2 If relevant to any dispute, the place of performance of the Contract shall be Doka’s registered office address.
20.3 Exclusive jurisdiction for any and all disputes arising from or in connection with these GTC and any Contract shall lie with the court of competent jurisdiction at the customer’s registered office address or, at Doka’s discretion, with the Superior Court of the Province of Ontario.
21.1 Customers understand that purchase orders and Contracts made in or created using the Online Shop give rise to the usual costs of internet usage which are always the customer’s sole responsibility.
21.2 Each Contract is binding upon, and enures to the benefit of, the customer and Doka and their respective successors and assigns. No Contract may be assigned or transferred without the prior written consent of Doka.
21.3 Any oral agreements, promises, representations, warranties and advisements made by Doka employees shall not be valid or enforceable and shall not have the effect of amending or adding to a Contract without an express unequivocal written confirmation by Doka.
21.4 In any paragraph of these GTC in which Doka is given a discretion to exercise, the customer agrees that that paragraph of these GTC shall be read and construed as if the words “in its sole and unfettered discretion” were included; so that all exercises of discretion by Doka shall be unfettered and shall be solely the decision of Doka without regard to the interests of the customer or of any third party.
21.5 Any amendments or alterations to a Contract shall be in writing and shall be signed by both the customer and by Doka. Without limiting the generality of the foregoing, either the customer or Doka may request an amendment or alteration to a Contract via email or other signed writing. If an amendment or alteration is request via email by either the customer or by Doka, then in order for the non-requesting party to agree to and be bound by the requested amendment or alteration, the non-requesting party must unequivocally and unconditionally accept the requested amendment or alteration via return (or ‘return all’) email to the sender.
21.6 Email shall be deemed to meet the written form requirement. Email shall likewise be sufficient for any other notifications or legally relevant communications unless otherwise provided for in any given case or in these GTC.