Terms and Conditions of Sale
1. PRICE AND PAYMENT TERMS
1.1 All prices set forth in associated estimate are EXWORKS MANUFACTURER (VENDOR) at point of manufacture and are payable at this custody transfer
point. Completion is designated by issuance of packing lists. All scope of work shall be invoiced as of completion, and all accounts not paid within terms of
invoice date will bear interest at the rate of two percent (2%) per month from invoice date. In the event of failure of timely payment by Buyer, Buyer shall pay to
SELLER all costs of collection including the entire amount due hereunder as attorney’s fees if collected by or through an attorney-at-law.
1.2 Prices on the Goods are exclusive of all city, state, and federal excise taxes, tariffs, duties, including, without limitation, taxes on manufacture, sales, receipts,
gross income, occupation, use and similar taxes. Wherever applicable, any tax or taxes will be added to the in- voice as a separate charge to be paid by the
Buyer. All tariffs, taxes, duties or other charges of any nature imposed by any governmental authority which may become payable with respect to the
manufacture, sale, delivery, export, import, possession or use of goods furnished hereunder or with respect to services furnished hereunder shall be for the
account of Buyer and shall be paid by Buyer when due unless such tariffs, taxes, duties or other charges are included in the purchase price of such goods and/or
services. Buyer shall indemnify Seller with respect to any claim against or liability of Seller in connection with the foregoing.
1.3 In addition to the purchase price for the Goods Buyer shall pay and be liable for all expenses incurred for insurance, freight, cartage, warehousing, and all
other charges in connection with loading and shipping the Goods to the Buyer regardless of whether SELLER or VENDOR assists with the logistics thereof.
1.4 Buyer shall pay all amounts payable to hereunder when due, time being of the absolute essence.
1.5 Payment for the Goods shall, if SELLER so requires, be made in full prior to delivery and SELLER shall be entitled to withhold delivery until such payment
has been made and any check or other negotiable instrument given in payment has cleared. SELLER shall have the additional right at any time to limit or cancel
any credit extended or to be extended hereunder. Upon failure by Buyer to make payment to SELLER within thirty (30) days after notice from SELLER limiting or
canceling any credit extended or requiring Buyer to make payment before delivery, SELLER shall have the option to cancel this and other contracts between
SELLER and Buyer. In such an event, in addition to its other remedies, SELLER may resell all or any part of the Goods undelivered under contract within 28 days
notice at public or private sale and Buyer shall be liable to SELLER for the difference between the resale price and the price at which Buyer agreed to buy the
Goods together with incidental damages.
2. COMPLIANCE WITH LAWS; EXPORT CONTROLS
Unless otherwise agreed to by the parties in writing, all sales by SELLER herein are for domestic consumption, use or re-sale only. Buyer shall comply with all applicable laws,
rules and regulations arising in connection with this Agreement and Buyer’s purchase and use of the Goods. Without limiting the foregoing, this Agreement is made subject to
any restrictions under the export control laws, rules and regulations concerning the export of products, materials or technical information from the appropriate destination
country (e.g., a “deemed export” applying to transfers solely within the destination country) which may be imposed upon or related to Buyer from time to time by the destination
government. In connection therewith, Buyer agrees that it will not export, directly or indirectly, the Goods provided or arising under this Agreement to any country or foreign
national for which the destination government or any agency thereof at the time of export requires an export license or other governmental approval, without first obtaining the
written consent to do so from SELLER and the other applicable agency of the destination government when required by an applicable statute or regulation.
Buyer shall specifically insure the Goods against ”all risks,” subject to normal exclusions, from the time that the risk of loss passes to Buyer, during the loading of Goods to
carrier, transport and unloading, and continuously thereafter until all amounts owed by Buyer to SELLER are paid in full. Evidence of such insurance satisfactory to SELLER
shall be submitted by Buyer prior to shipment or SELLER may procure such insurance at Buyer’s expense.
4. WARRANTIES AND EXPRESS WAIVER OF ANY TORT OR OTHER CONTRACTUAL REMEDY
SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR THE WARRANTY OF FITNESS FOR
PARTICULAR PURPOSE. IN NO EVENT SHALL SELLER HAVE ANY LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES INCLUDING, BUT NOT LIMITED
TO, ERECTION COSTS, LOST PROFITS, DAMAGE TO GOODWILL, LOSS OF TIME, DELAY, LIQUIDATED DAMAGES, INCONVENIENCE OR OTHER COMMERCIAL OR
ECONOMIC LOSS, and in no event shall Seller be liable for damages.
5. Other LIMITATION ON DAMAGES RECOVERABLE. There is a limitation on damages recoverable regardless if the action against SELLER sounds in warranty contract or tort
pursuant to paragraph 5 above. SELLER shall not be liable for delay in shipment for any cause beyond its reasonable control, nor shall such delay entitle Buyer to cancel any
order or refuse to accept delivery. SELLER shall not be liable for failure or delay in shipment or other performance hereunder if such failure is due in whole or in part to strikes,
fires, accidents, wars, rebellions, civil commotion or public strike, acts of any government, whether legal or otherwise, acts of public or private enemies, force majeure, inability
to secure or obtain or delay in securing or obtaining transportation, machinery, materials, or sufficient qualified labor, or any other causes beyond SELLER ’s reasonable
6. RISK OF LOSS
Unless otherwise specifically agreed in writing, risk of loss of the Goods shall pass from SELLER to Buyer when the Goods or any portion thereof, properly packed and secured in such a
manner as to reach their destination in good condition under normal conditions of transport, are placed in the possession of the carrier, EXW VENDOR shipping point for shipment to Buyer.
VENDOR may choose any reasonable carrier for delivery. Tender of delivery shall be deemed made at VENDOR shipping point even when freight is prepaid to point of destination or
VENDOR or SELLER is required to deliver the Goods to a particular destination.
This Agreement constitutes the entire agreement of the parties with respect to the terms and conditions of sale of the Goods specified herein. This Agreement supersedes any other agreement, representation or statement made by SELLER prior to the date these terms and conditions are issued to buyer. No modification of this Agreement shall be binding upon the parties
unless in writing and signed by the party to be bound. The requirement that any modification will be in writing cannot be waived unless the waiver of this requirement is in writing. Any terms
and provisions contained in any document of the Buyer which are inconsistent with the terms and provisions hereof shall not be binding on SELLER and shall not be considered applicable
to the sale or shipment of the Goods. No agent, employee or representative of SELLER other than its officers has any authority to bind SELLER to any affirmation, representation or
warranty concerning the Goods sold under this Agreement and unless an affirmation, representation or warranty made by an agent, employee, or representative is specifically included
within this Agreement, it has not formed a part of the basis of this bargain and shall not in any way be enforceable or actionable.
Waiver by SELLER of a breach by Buyer of any provision of this Agreement shall not be deemed a waiver of future compliance with the provision of the Agreement breached.
The Buyer shall take all reasonable precautions to ensure that the worksite is free of dangers to staff and that sufficient training be provided to all visiting technicians. SELLER DOES NOT
WARRANT OR GUARANTEE THAT THE EXERCISE OF THE RIGHTS GRANTED PURSUANT TO THIS AGREEMENT AND THE USE OF ANY PRODUCTS MADE PURSUANT TO THE
PRACTICE OF SUCH RIGHTS WILL NOT RESULT IN SAFETY OR HEALTH HAZARDS TO WORKERS, THE ENVIRONMENT, OR TO PURCHASERS OF SUCH PRODUCTS. The SELLER
shall not be liable or responsible for: (a) any personal injury or consequential damage of any nature whatsoever, however caused, that may be suffered or sustained by the SELLER or by any other
person who may be upon the premises of the Buyer; or (b) any loss or damage of any nature whatsoever, howsoever caused, to the premises of the Buyer of any property or to any persons and
shall indemnify and hold harmless the SELLER for all such occurrences.
10. CONTROLLING LAW
The validity and interpretation of this Agreement shall be governed by the laws of the province of Ontario, Canada.
11. EXCLUSIVE JURISDICTION
In the event of any legal action, Buyer, to the extent it may lawfully do so, hereby submits to the exclusive jurisdiction of any state or federal court located in Fulton County, Ontario. Buyer
further submits to the exclusive jurisdiction of all Ontario courts from which an appeal may be taken from the aforesaid courts. The Buyer expressly waives any objections based on
personal jurisdiction or venue in any of these Ontario courts. The Buyer further agrees that it may be validly served with any legal process in connection with the foregoing by the mailing of
a copy thereof by registered or certified mail at is address shown on the reverse hereof.
12. SEVERABILITY CLAUSE
If any paragraph or part thereof is determined to be invalid, all remaining paragraphs of the agreement and all terms not invalidated shall be considered severable from the invalidated
The parties hereto hereby agree that any dispute concerning, relating or referring to this Agreement shall be resolved exclusively by binding arbitration according to the then existing rules
of t Arbitration or conflict resolution in an arbitration conducted in Toronto, Ontario, Canada as assigned by the SELLER. Such proceedings will be governed by substantive Ontario law.
The dispute will be resolved by a single arbitrator who must be a lawyer admitted to practice in the courts of at least one province in the Canada and have a minimum of fifteen years of
experience in civil litigation. The arbitrator so described will be selected by SELLER. Each party to the dispute shall have the right on a single occasion to veto the designation of an
arbitrator so selected. There will be judicial review of the arbitrator’s decision if either side can show plain error in the application of law or be able to show an abuse of discretion with
respect to factual findings. The parties hereto waive the right to rely on any state law or statute which creates an exception to enforcement of the requirement that disputes be resolved
pursuant to arbitration in the manner set forth herein.
15. Claims Procedure
Buyer agrees to inspect all goods upon delivery and no claims for shortages or delivery of non-conforming goods need be honoured by Seller unless written notice of such claim is received
by Seller within 15 days of delivery. Seller shall in no event pay or be liable for any claim resulting from damage caused by Buyer or Buyer’s agents or the installation, alteration or repair of
apparently improper, defective or damaged goods. BUYER MUST INSTITUTE LEGAL ACTION ON ALL CLAIMS AGAINST SELLER WITHIN SIX MONTHS OF DELIVERY. No action may
be maintained by the Buyer, which is not commenced within such period notwithstanding any statutory period of limitations to the contrary.
Seller shall not be liable for any delay in performance or shipment arising from casualty, riots, acts of God, government intervention, material, supply or transportation availability, labor
difficulties, embargoes, tariffs or any other cause beyond its control, and if such delay shall extend beyond 30 days, Seller may invoice Buyer for goods to be delivered if delays are created
by buyer once seller has completed initial order. Receipt of goods by Buyer shall constitute acceptance of delivery and WAIVER OF ALL CLAIMS FOR LOSS OR DAMAGE DUE TO
Seller reserves the right at any time to suspend or change credit terms provided herein or to require full or partial payment in advance, if in Seller’s sole opinion the financial condition of
Buyer so warrants.
18. Expenses and Attorney’s Fees
Buyer agrees to pay Seller’s reasonable costs, expenses and attorney’s fees incurred by Seller in enforcing Buyer’s obligations or Seller’s rights here under, in collecting any money due
from Buyer or in successfully defending against any claim made by Buyer against Seller.
19. No warranty
No warranty for services performed are expressed or implied.
These terms and conditions are set forth between parties as defined in the Quotation.
An Agreement shall form at the issuance of a purchase order by the Buyer per the Quotation and these terms and conditions.
This Agreement shall terminate if the supply agreement is rightfully terminated by either party.