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WESTECH INDUSTRIAL LTD. TERMS AND CONDITIONS OF SALES

 

A. GENERAL

1. Any order based on a proposal must be submitted within 30 days of proposal date. Orders submitted after 30 days are subject to price changes.

2. All prices, unless otherwise stated, are payable in Canadian dollars.

3. Buyer's order is binding only when accepted in writing at the principal office of Seller. Any order based upon a proposal will be subject to cancellation by Seller without consent. The terms and conditions of sale are only those stated below.

4. If any other terms and conditions are in Buyer's order, they are hereby rejected unless independently approved in writing by our authorized representative at the Seller's office. All orders are subject to approval and acceptance by our principals at their respective head offices.

5. All quotations are subject to examination, review, increase in price or withdrawal before acceptance of order based on the quotation. Clerical or typographical errors are subject to correction. The parties agree there are no agreements between the parties, oral or written, with respect to the goods sold hereunder (including any made or implied from past dealings) except as expressed herein.

6. Shipping dates are estimates only and are not guaranteed. Seller will use every effort to make shipments as scheduled and may make partial shipments. However, the completion of the order is subject to acts of God or the public enemy, fires, floods, unusually severe weather, delays caused by governments (including government priorities, preferences or allocations), delays of suppliers in furnishing materials and services, and any other causes beyond our control. In the event that delays occur which are beyond our control, and it is not reasonably possible for us to make delivery at the date or dates specified, seller may deliver at a later date by a period of time equal to the duration of the delaying or preventive cause.

7. If the items ordered are to be exported from the Canada, the quoted shipping dates are subject to receipt of all export documents and authorizations. Regardless of ultimate destination, the prices quoted are based on packing for domestic shipment unless otherwise stated.

8. Prices quoted, unless otherwise stated, are EX Seller’s Warehouse per Sales Order and do not include sales, use, excise or similar taxes or duties. Buyer will pay these items directly if the law permits or will reimburse us if we are required to pay them. Buyer will provide tax exemption certificates or evidence of tax payment on request. As all of our prices from principles that Seller represents are subject to change without notice we are obliged to so quote hereunder. Prices including duty, exchange, sales tax, goods and services taxes and freight are based upon the respective rates figured by seller and are subject to change, up or down, according to variations in tariffs as applied at the time of delivery. Sales taxes or other imposts assessed by authorities foreign to Canada will be charged extra. Provincial sales taxes, Federal Sales Taxes, goods and services taxes and other imposts assessed by authorities foreign to Canada or Canadian authorities will be charged extra unless stated otherwise in our proposal.

9. In the event credit has not been established seller reserves the right to require payment, orthe issuance of an irrevocable letter of credit, in advance of shipment. Terms of payment are Net 30 days, any amounts not paid when due shall bear interest at the rate of 1 1/2% per month or at the highest rate permitted by law (whichever is less), from the date of shipment until paid. Seller reserves a purchase money security interest in each item shipped, which will be satisfied by payment in full. Seller has the right to file a copy of this document as a financing statement.

10. Buyer's order will be deemed a representation that Buyer is solvent and able to pay for the items ordered. If Buyer fails to make payments when due or if bankruptcy or insolvency proceedings are instituted by or against Buyer, or if Buyer makes an assignment for the benefit of creditors, Buyer will be deemed in default and seller will have the right to terminate our obligations by written notice to Buyer, but such termination will not affect Buyer's obligation to pay for items delivered and work in progress.

11. No goods may be returned without prior written approval of Seller. If accepted, the return will be assigned a Return Number that must accompany the goods when returned.

12. Orders placed with and accepted by Seller may not be cancelled except upon Seller's written consent prior to shipment and Buyer's acceptance of Seller's cancellation charges, which shall protect Seller against all costs and losses. Seller’s standard restocking charge is 30% of the order or item selling price to the Buyer. Seller reserves the right to cancel any sale hereunder without liability to Buyer (except for refund of monies already paid), if the manufacture or sale of the goods is or becomes technically or economically impractical.

13. Seller reserves the right to discontinue the manufacture of, or change or modify the design and/or construction of the goods sold pursuant to this document, without incurring any obligation to Buyer.

14. Purchase Order Terms of Payment: The Buyer who receives order of acceptance must agree to pay net 30 days from the date of invoice unless otherwise agreed in writing between the Buyer and the Seller.

15. Either Party may request changes that affect the scope, duration, delivery schedule or price of the order, including changes in the specifications and goods to be delivered. If either Party requests any such change, the Parties shall negotiate in good faith a reasonable and equitable adjustment to the Purchase Order. Neither party shall be bound by any change requested by the other until an amendment to the Purchase Order in the form of a change order has been accepted in writing by both Parties.

16. Invoices shall be sent to the address specified in the purchase order.

17. Should the Buyer dispute any invoice, Buyer shall notify Seller of the nature of the dispute in writing within fifteen (15) days of the invoice date. Buyer shall have the right to withhold payment or the portion of the payment in question until the dispute is resolved. If Buyer does not notify Seller of any dispute within fifteen (15) calendar days of the invoice date, then the invoice is deemed to have been accepted and invoice payment is required to be made on the payment due date per contract terms.

18. Seller shall invoice Buyer in accordance with the invoicing milestones agreed in the relevant Proposal.

19. If Buyer is delinquent in its payment obligations, without prejudice to any other remedies available to it by law or in equity, Seller may suspend all further deliveries or performance to be made under the agreement or any further performance under any other contract with Buyer or Buyer’s Affiliates, in which even Buyer shall not be released in any respect from its obligations to Seller under the agreement or the other contract.

B. TITLE AND DAMAGE IN SHIPMENT

20. All items should be inspected and tested as soon as received. If any damage is discovered, a claim should be filed with the carrier. A full report of the damage should be forwarded to us so that we can arrange for repair or replacement.

21. If this sale is F.O.B. factory, title to items passes to Buyer when delivered to carrier, and we are not responsible for damage or loss in transit. Seller can arrange for in-transit insurance at Buyer's expense, but will not do so without Buyer's written instructions. If this sale is F.O.B. destination, title to items passes upon tender of delivery by carrier to Buyer, and if items are damaged we must receive Buyer's claim for loss or damage in transit within ten (10) days after receipt of shipment, which must be signed by the carrier.

C. WARRANTY

22. Seller passes on the manufacturer’s warranty to the purchaser. Seller does not in its own name underwrite the manufacturer’s warranty. The liability of Seller and purchaser’s exclusive remedy in any cause or actions (whether in contract, tort, breach of warranty or otherwise) arising out of the sale of any products, supplies or materials is expressly limited to the manufacturer’s warranty. In no event shall Seller be liable for special, incidental, indirect, punitive or consequential damages.

23. All items that seller manufactures are warranted, when paid for and properly installed, operated and maintained, to be free from defects in material and workmanship and to conform to the specifications, if any, listed on the other side of this form. If no specifications are listed, the items are warranted to conform to our currently published specifications.

24. The warranty period is one year from the date of installation by the first user of the goods, or eighteen (18) months from the date of shipment to the first user, whichever occurs first.

25. No warranty is given for products or components (such as electric or pneumatic mechanisms) manufactured by companies not affiliated by ownership with Seller, or for goods which have been subject to misuse, improper installation, corrosion, or which have been modified or repaired by unauthorized persons.

26. Seller must receive written notice of defect within the warranty period. Liability is limited to servicing or adjusting any item returned to the factory for that purpose, including replacing any defective parts therein. Buyer must pay packing, crating and transportation costs to and from the factory.

27. At Buyer's request, we will make reasonable efforts to provide warranty service at the Buyer's premises, provided the Buyer pays our then current rates for field service and the associated travel and living expenses. If a fault has been caused by improper installation, maintenance or use, or by abnormal conditions of operation, repairs will be billed at normal rates.

28. If any fault develops, the following steps should be taken: Notify us by giving the item model number, serial number and details of the difficulty. On receipt of this information, you will be given service data or shipping instructions. On receipt of shipping instructions, forward the item prepaid. If the item or the fault is not covered by warranty, an estimate of charges will be furnished before work begins. All statements and guarantees covering designs, materials, workmanship and performance are those of the respective manufactures or the equipment and material herein that is quoted upon. We do not in our own name or for ourselves underwrite any such statements or guarantees of manufactures we represent.

We disclaim statutory and implied warranties, such as warranties of merchantability and fitness for purpose. We also disclaim all warranties regarding any ancillary services rendered.

D. CONFIDENTIAL INFORMATION; PATENT INDEMNITY

29. Any statements, undertakings or defense of any actions brought against the Purchaser alleging that the Equipment furnished hereunder by Seller or the use of said Equipment to practice any process supplied hereunder by Seller directly infringes any claim of a patent shall be those of our principle suppliers and/or the manufacturers of the equipment and material herein quoted upon as per their standard published policies. Seller does not independently underwrite any such statements or undertakings regarding patent indemnity nor will we undertake the defense of any aforesaid patent infringement actions.

30. Any drawings submitted herewith are to show only the general style, arrangement, and approximate dimensions of the goods offered. No work is to be based on drawings unless the drawings are certified. In no event will manufacturing or proprietary drawings be supplied.

31. Buyer agrees that all drawings, prints and other technical material which Seller provides to Buyer, whether prepared by Seller or by third parties under contract to Seller, contain data which embody trade secrets and confidential know-how of commercial value to Seller or third parties under contract to Seller. Buyer agrees (a) to keep such information confidential; (b) that it will not disclose such information to any other person, corporate division or entity; (c) will not use such information except in connection with the goods supplied hereunder; and (d) will not sell, lease, loan or permit any other person, corporate division or entity to use such information for any purpose, without Sellers prior written consent. Nothing herein shall restrict the use of information available to the general public.

32. Seller has the right to defend or, at its option, to settle and if seller agrees, at its own and Seller will endeavor to review each order individually to obtain the best possible claim of infringement of any United States or Canadian patent by any item supplied to Buyer under this order. We agree to pay any final judgment entered against Buyer based on such a claim provided:

a.       Buyer must notify seller promptly in writing of any such claim, suit or proceeding, and

b.       Buyer must give seller proper and full information and assistance to settle and/or defend any such claim, suit or proceeding at our expense. If an item furnished to Buyer becomes or in our opinion, may become the subject of any claim, suit or proceeding for infringement of any United States patent, we may at our option and expense (i) obtain for Buyer the right to use, lease or sell the item, (ii) replace the item, (iii) modify the item, or (iv) remove the item and refund the purchase price paid by Buyer less a reasonable amount for use, damage or obsolescence.

33. Seller will not be liable for any infringement arising from the combination of items or from the use of an item in practicing a process. Seller’s total liability to Buyer will not, under any circumstances exceed the purchase price paid for the allegedly infringing item. Buyer agrees at its expense to protect and defend seller against any claim of patent infringement arising from compliance with Buyer’s designs, specifications or instructions and to hold seller harmless from damages, costs and expenses attributable to any such claim. The foregoing states the exclusive remedy of the Buyer for any alleged patent infringement by an item supplied under this order.

E. LIMITATION OF DAMAGES

34. Limitation of Liability: (a) In no event shall Seller, its principle suppliers or subcontractors be liable for special, indirect, incidental or consequential damages of any kind whatsoever, whether in contract, warranty, tort, negligence, strict liability or otherwise, including, but not limited to, loss of profits or revenue, loss of use of the equipment or any associated equipment, cost of capital, cost of substitute equipment, facilities or services, downtime costs, delays, or claims of Buyers of the Purchaser or other third parties for such or other damages. (b) All causes of action against Seller arising out of or relating to this contract or the performance or breach hereof shall expire unless brought within one year of the time of written notification to Seller. (c) Under no circumstances shall Seller or its principle suppliers assume any responsibility for, or be liable for liquidated damages, penalties, penalty clauses of any description or indemnification of the Purchaser, his agents, assigns or others for any costs, damages, or expenses arising out of or related to the equipment and/or Services or delayed delivery thereof.

F. RETURNS AND CANCELLATIONS

35. Returns: Each request for return will be reviewed individually, and if accepted, the return will be assigned by a Seller Return Number. Products returned for credit must be new, unused and in the original containers/boxes with all documentation provided. All returned items are subject to a minimum inspection fee. All transportation changes are to be prepaid by the purchaser. In addition to the inspection fee, all products returned are subject to a minimum restocking charge that will be communicated in writing. Seller does not accept returns of goods after 60 days from original ship date.

36. Cancellations: At receipt of approved order, cancellation/restocking will apply, at a minimum, Cancellation terms within 24 hours. Cancellation charges after 24 hours from date of order will be based on the status of the order (work in progress, shipments from suppliers, cancellation charges from suppliers, etc.). Orders cannot be cancelled by purchaser under any circumstances without the seller’s consent and upon terms which will indemnify against all loss. Title to materials in this contract shall remain with the seller until goods supplied are paid for. The purchaser is responsible for loss or damage from the time of shipment from Westech warehouse.

37. When an order is cancelled, the following costs will be invoiced:

  •         A minimum of 25% of the PO value if the good is a stocked item by Seller.
  •         A minimum of 60% of the PO value if the order has been released to the factory.
  •         100% of the PO value upon readiness to ship from the factory.