Invoice and Order Terms and Conditions

ALL SALES BY CARRIERE INDUSTRIAL SUPPLY LIMITED (“Seller”) UNLESS COVERED BY A PRIOR EXISTING WRITTEN CONTRACT SIGNED BY SELLER, ARE SUBJECT ONLY TO THE FOLLOWING TERMS AND CONDITIONS. ANY TERMS IN CUSTOMER’S PURCHASE ORDER OR ANY OTHER CUSTOMER DOCUMENT WHICH ARE IN ADDITION TO, OR ARE DIFFERENT OR CONTRARY TO THESE TERMS, ARE HEREBY REJECTED.

Acceptance of Quotation

The Quotation, if signed by an authorized signatory of the Seller, or forwarded by electronic means, is an offer by Seller to manufacture or supply goods or supply services or both as described on the Quotation on the terms and conditions set out hereafter. The Quotation may be withdrawn at any time before it is accepted by Purchaser. The Quotation is open for acceptance by Purchaser only within 15 days of the date hereof unless stipulated differently on the Quotation. Acceptance is accomplished by Purchaser giving Seller written notice of acceptance of the Quotation by signing and returning to Seller a Purchase Order; or, by sending by electronic means a Purchaser Order. The Quotation does not apply to subsequent orders from Purchaser for the same goods or services or both.

Entire Agreement

The Quotation includes the terms and conditions set out on this page, any specifications and drawings attached thereto, and any additional written terms and conditions incorporated into and attached thereto. The Quotation, upon acceptance by Purchaser, constitutes the entire agreement between the parties. Other than the terms and conditions set out or incorporated herein, there are not agreements, undertakings, representations, warranties, covenants, conditions, terms or reservations, oral or written, between Seller and Purchaser respecting the subject matter of the Quotation. No change, alteration or modification of the Quotation is valid unless in writing and signed by an authorized signatory of Seller, and no course of dealings is deemed to alter the terms hereof. All sale of goods legislation, statutory warranties and warranties implied by law including fitness for purpose are expressly excluded.

Terms of Agreement

The Quotation supersedes all previous quotations for the same subject matter from Seller and all purchase orders and terms and conditions from Purchaser. If Purchaser issues a purchase order or other document respecting its obligations to pay any sum set forth herein, the terms and conditions of that purchase order or other documents do not supersede, amend, or vary the terms and conditions of the Quotation, even if a copy of the purchase order is executed by Seller to facilitate payment of the charges pursuant to the Quotation. If there is any conflict or inconsistency whatsoever between the Quotation, and the terms and conditions of a purchase order or other document of Purchaser, then the terms and conditions of the Quotation govern, regardless of which document was first executed and regardless of the terms of the purchase order or other document. Purchaser’s receipt and acceptance of goods and services or both from Seller also constitutes acceptance of and consent to the terms and conditions of the Quotation. No consideration has been given to Seller for terms and conditions other than as found therein.

Supply of Goods

Seller hereby agrees to sell to Purchaser the goods, as described on the Quotation, with delivery by the delivery date, specified on the Quotation for each item of the goods. Seller warrants and represents that it has good title to the goods, and the full right and authority to sell the goods to the Purchaser. Title in the goods transfers to Purchaser upon full payment of all amounts owed to Seller pursuant to the Quotation and Invoice.

Supply of Services

Seller shall perform all services described on the Quotation by the delivery date specified on the Quotation for each item of services except where otherwise provided in the Quotation. Seller shall perform its services in an efficient and top quality workmanlike manner in accordance with the usual and customary procedures followed by prudent operators in the industry performing similar work.

Delay in Completion

Each delivery date stated on the Quotation is approximate only and if Seller delays or fails to deliver goods or supply services or both as a result of an event of Force Majeure, change orders by Purchaser or any other action, inaction or interference by Purchaser, then Seller is not liable to Purchaser for any damages of any type whatsoever, including aggravated, consequential, indirect or punitive damages.

Quotation Performance

Seller may subcontract or assign any part or all its rights and obligations pursuant to the Quotation, without the consent of Purchaser. Seller remains liable for performance of all its obligation hereunder notwithstanding any such subcontract or assignment.

Change Orders

Purchaser may modify, add or delete the quantities, types or specifications of any goods or services to be supplied pursuant to the Quotation provided that no such change is effective unless a written change order is accepted and signed by an authorized signatory of Seller. If a change order results in the imposition of costs or changes on Seller or an increase in price or time required for supply of any part of the goods or services or both to be supplied pursuant to the Quotation, then Seller may adjust the price, delivery date or both and include such costs or charges and such adjustments are binding upon Purchaser. All change orders accepted by Seller are subject to all the terms and conditions of the Quotation as if the change order formed part of the Quotation. Such Change Orders will be documented through a revised quotation identified by the original quotation number and appended revision number. The Purchaser will acknowledge the revised quotation by issuing a revised or new Purchase Order.

Shipping

All goods are at the risk of Purchaser upon delivery of the goods to Purchaser, its agent or a carrier for shipment to Purchaser, whichever delivery first occurs. Seller at its own expense shall pack the goods for domestic shipment. Purchaser shall pay Seller its reasonable costs for special domestic or export packing. All shipments are F.O.B. Seller’s warehouse, Lively, Ontario, Canada unless otherwise specified on the Quotation. All insurance charges and related taxes and duties are for Purchaser’s account unless otherwise specified on the Quotation. Seller may deliver the goods in installments. Unless Purchaser specifies the routing and method of shipment, Seller shall ship by a common carrier of Seller’s choice. Seller is not liable for any delays in delivery, non-delivery or damage or breakage during delivery after Seller has delivered the goods to Purchaser, Purchaser’s agent or a common carrier.

Storage

In the event that Seller stores the goods outlined in the Quotation at its facility on behalf of the Purchaser, (at the Purchaser’s risk), the Purchaser will be charged at a rate of $2,000.00 per month or 1% of the total contract per month, (whichever is greater), for as long as the equipment is in storage. Payment is net 30 days from the end of each month in storage. All insurance on the equipment shall be the sole responsibility of the Purchaser. Upon placement in storage, (at Seller’s facility or elsewhere), the goods shall be deemed to have been delivered to the Purchaser and any payment milestones triggered by delivery or readiness to ship shall be due and invoiced subject to the payment terms as presented on the Quotation.

Inspection

Purchaser and its agents have reasonable access, upon prior written notice, to Seller’s facility for the purpose of inspection and testing of goods. Purchaser is deemed to have accepted the goods unless it notifies Seller in writing of non-acceptance and the reasons therefor, within 14 days of Purchaser’s receipt of the goods from Seller, Purchaser’s agent or a common carrier, whichever event occurs first. Purchaser, upon giving such notice, shall with reasonable care hold the non-accepted goods at Seller’s risk and reasonable cost pending Seller disposition instructions.

Product Returns

Unless otherwise specified on the quotation, packing slip or invoice, the Seller will accept qualified and conforming products for exchange or return within 30 days of the original purchase date. To qualify for return all products require a Return Authorization (RA) number prior to being returned, must by 100% complete, in the same condition as when sold, and in the original packaging as provided. All product accepted for return will be subject to the standard restocking fee of 25% of the original price. Non-qualified, non-conforming, custom fabricated or item ID numbers commencing with the prefix “NS” will be considered final sale and are not subject to return or exchange.

Price

The prices quoted on the Quotation are based in part on cost of materials to the Seller. Seller may reduce or increase the prices quoted on the Quotation prior to completion of manufacture or supply of the goods to Purchaser as a result of clerical errors in price calculation, changes in foreign currency rates if the price is quoted in Canadian dollars and the Seller purchases materials in a currency other than Canadian dollars, or if there are changes in labour or material costs. All prices quoted are in Canadian dollars unless stated otherwise. The prices quoted do not include taxes, duties or any other charges of any kind levied by any governmental or regulatory authority on the prices or any part of them, all of which taxes, duties and other charges are to the account of and shall be paid by Purchaser. Where price is on a cost plus basis, Seller shall maintain full accounts and records regarding the goods for 36 months from date of acceptance by Purchaser, and Purchaser may upon reasonable prior written notice inspect such accounts and records and Seller shall co-operate as may be necessary to permit Purchaser to conduct such inspection.

Payment Terms

Unless specified otherwise on the quotation or invoice the Seller’s standard credit terms are payment due on delivery or the announcement of the Seller’s ability to ship. Purchaser shall pay the Seller interest monthly, calculated from the due date for payments at the rate of 1.5% per month on all amounts which are outstanding for more than 30 days after payment is due, until the date of actual payment, whether before or after judgment. Purchaser shall pay all costs and expenses the Seller incurred in collecting payment of any overdue amount or interest from Purchaser, including but not limited to actual legal fees, process service fees and court costs paid or payable by Seller. Seller may set of any amount owing from Purchaser to Seller against any amount due or owing to Purchaser. It is understood that no holdbacks shall be applied to any contract arising from the Quotation except as specifically agreed to in a written contract between the parties.

Personal Property Security Act

Purchaser hereby grants Seller a purchase money security interest in the goods supplied by Seller to Purchaser pursuant to the Quotation and Invoice, and in the proceeds of those goods, pursuant to the Personal Property Security Act (Ontario), as security for all amounts remaining unpaid by Purchaser pursuant to the Quotation and Invoice. Seller may register financing statements pursuant to the Personal Property Security Act (Ontario) and Purchaser hereby waives its right to receive copies of such financing statements or any financing change statements. Purchaser hereby acknowledges receipt of a copy of the Quotation.

Taxes and Duties

All invoices from Seller shall show any duty, sales tax, excise tax, goods and services tax and Harmonized sales tax separately, which amounts are additional to the prices quoted on the Quotation and which shall be paid by Purchaser.

Stoppage

Seller may stop work at any time and withhold the supply of goods or services or both to be performed pursuant to the Quotation if any payment due from Purchaser to Seller is not paid to Seller by its due date, and if Seller exercises this stoppage right then the Quotation is deemed terminated pursuant to the Optional Termination provision set out below and Purchaser shall forthwith pay Seller all amounts required to be paid by Purchaser pursuant to that provision.

Optional Termination

The Quotation may be terminated by Purchaser at its option, in whole or in part, at any time by written notice to Seller. Upon such termination, Purchaser shall pay Seller the price of all goods and services which have been delivered or provided pursuant to the Quotation, including work in progress in proportion to the total work to be performed under the Quotation, as reasonably determined by Seller, and all materials ordered by Seller for the performance of the Quotation plus any penalties or charges from suppliers. Purchaser shall also pay Seller an amount equal to 10% of the total price of the Quotation, which the parties hereto agree is a genuine, reasonable pre-estimate of the loss of profit and damages suffered by Seller as a result of this termination and not as a penalty. Upon payment pursuant to this clause, Seller releases all other claims it may have against Purchaser arising from the termination. If Purchaser incorrectly terminates the Quotation for breach, such termination is deemed to be a termination under this clause.

Default and Termination

Either party may terminate the Quotation in part as to goods or services specified by the terminating party, or in full, at any time by written notice to the other party if:

  1. The other party does not cure a breach of this agreement within 30 days after receipt of written notice of breach from the party giving notice; or
  2. Prior to completion of supply of goods or services or both, the party receiving notice becomes insolvent, assigns itself or is petitioned into bankruptcy or a receiver is appointed over any part or all of its business or other similar action taken in respect of the party receiving notice.

If Purchaser terminates the Quotation pursuant to this clause, Purchaser shall forthwith pay Seller all amounts required to be paid by Purchaser under the Optional Termination clause, except the 10% damages amount. Purchaser releases all claims it may have against Seller as a result of Seller’s breach and the termination. If Seller terminates the Quotation pursuant to this clause, Purchaser shall pay forthwith to Seller all amounts which Purchaser is required to pay under the Optional Termination clause, plus any additional damages, of any nature, which Seller has suffered as a result of Purchaser’s breach.

Patents

Seller warrants and shall ensure that all goods supplied pursuant to the Quotation do not infringe any patent, trade secret, copyright, trademark or other intellectual property right of another party in Canada or United States. Seller shall hold harmless and indemnify Purchaser against any claim or legal action brought against Purchaser alleging that any goods supplied by Seller hereunder infringe any patent, trade secret, trademark or other intellectual property right. Seller shall defend any such claim or action and pay all costs and expenses arising therefrom. This provision does not apply to any goods manufactured to Purchaser’s designs and specifications where such designs and specifications form the basis of the claim or action, in which case, Purchaser shall indemnify and hold harmless Seller against all claims and legal actions brought against Seller alleging that any goods supplied by Seller hereunder infringe any patent, trade secret, copyright, trademark or other intellectual property right. Purchaser shall defend all such claims and actions and pay all costs and expenses arising therefrom.

Confidentiality

If seller generated or supplied the designs for any goods to be supplied pursuant to the Quotation, then the Quotation and such designs, including all drawings, intellectual property, specifications and information relating to them, are confidential and the property of Seller. Purchaser shall use such confidential materials only as required to operate and maintain the goods. Purchaser shall not disclose any confidential materials without the prior written consent of Seller, which may be arbitrarily withheld. Purchaser shall give such other assurances and enter into such additional secrecy agreements as Seller may require.

If Purchaser generated or supplied the designs for any goods to be supplied pursuant the Quotation, then such designs, including all drawings, specifications and information relating to them, are confidential and the property of the Purchaser. Seller shall use such confidential materials only as required to manufacture the goods. Seller shall not disclose any confidential materials without the prior written consent of Purchaser, which may be arbitrarily withheld. Seller shall give such other assurances and enter into such additional secrecy agreements as Purchaser may require. Upon completion of manufacture of goods based on Purchaser’s design, Seller shall upon request return to Purchaser all drawings, specifications and information supplied by Purchaser respecting those goods. If no request is received within 30 days after delivery of goods, Seller may destroy Purchasers drawings, specification and other material.

The confidentiality obligations stated above do not apply to information which (i) is in the public domain; (ii) was known to the recipient prior to the Quotation; (iii) was disclosed to the recipient by a third party and without violating any obligations of confidentiality or non-disclosure; (iv) was independently developed by the recipient or (v) is required to be disclosed by law, government, regulatory authority or court. These Confidentiality provisions indefinitely survive the termination or completion of the supply of goods and services pursuant to the Quotation.

Force Majeure

Seller is not liable for any delay or failure to perform any of its obligations pursuant to the Quotation by reason of any event beyond its control, including an Act of God, war, revolution, insurrection, rebellion, civil commotion, riot, terrorism, act of a public enemy, sabotage, labour dispute or strike or lockout or slowdown, explosion, fire, flood or storm or other natural catastrophe, equipment failure, power or other utility failure, inability to obtain sufficient, suitable or timely labour or materials, embargo, law or ordinance or regulation, or plant breakdown. If an event of Force Majeure prevents Seller from performance of its obligations for a period of less than 90 days then Seller performance of its obligations is suspended for the period of Force Majeure and the delivery dates for goods are deemed extended by the period of Force Majeure. If an event of Force Majeure prevents Seller from performance of its obligations for a period of 90 days or more, then Purchaser may give written notice to Seller of termination, whereupon the Quotation is deemed terminated as if terminated by Purchaser pursuant to the Optional Termination provisions, but Purchase is not obligated to pay the 10% damages required to be paid pursuant to those provisions.

Export Compliance

Goods supplied pursuant to the Quotation may be subject to laws and regulations governing the export of goods and technology from Canada. If goods supplied hereunder are to be exported from Canada, then Seller performance of its obligations hereunder is subject to Purchaser obtaining the necessary approvals, licenses and permits required by Canadian law. Purchaser shall not ship or divert any of the goods hereunder, or any technical information relating thereto, to any country outside Canada in violation of Canadian export laws. Purchaser shall indemnify Seller from all claims, damages, costs and expenses resulting from any breach of these provisions by Purchaser.

Limit of Liability

Under no circumstances will Seller be liable for damages or costs of any nature in a dollar amount above the value of any contract arising from the Quotation should they be selected as the successful vendor. Neither party is liable for any aggravated, indirect, consequential, punitive or special damages, including loss of profits or loss of anticipated profits, however arising and sustained by the other party in the performance, purported performance or non-performance of the Quotation.

Limited Warranty

All sales of goods and services pursuant to this Quotation are subject to Seller’s limited warranty in effect from time to time. Seller’s warranty shall be limited to the repair, replacement or adjustment of any defective parts or components during the prescribed warranty period. Seller’s limited warranty shall be in lieu of all other warranties or conditions, express or implied, including, but not limited to, the implied warranties or conditions of merchantable quality and fitness for a particular purpose and those arising by statute or otherwise in law or from a course of dealing or usage of trade.

General

The Quotation is governed by the laws of the Province of Ontario and its courts have exclusive jurisdiction over any disputes arising from the Quotation. Time is of the essence in the performance of obligations under the Quotation. No waiver by either party of the full and strict performance of any obligation of the other party pursuant to the Quotation is effective unless in writing. All post-delivery obligations and indemnities survive any termination of the Quotation. Purchaser may not assign its rights and obligations under the Quotation without the prior written consent of Seller, which may be arbitrarily withheld. Consent to assignment does not release Purchaser from its obligations under the Quotation. All notices required or permitted to be given under the Quotation are properly given if in writing and delivered by whatever means to the parties at their address shown in the Quotation. Notices are deemed received only upon their actual arrival at the addressee’s address or email address as aforesaid. Either party may change its address or email address by notice of aforesaid. The Quotation is binding upon and ensures to the benefit of the parties hereto and their successors and permitted assigns.