GENERAL TERMS AND CONDITIONS OF SALE

ALL ORDERS ACCEPTED SHALL BE SUBJECT TO THE FOLLOWING CONDITIONS:

1. BUYER’S ASSENT TO THESE TERMS AND CONDITIONS. (a) Seller hereby objects to and rejects any and all different or additional terms or conditions contained in any order submitted to Seller by or on behalf of Buyer unless specifically agreed to in a writing signed by an officer of Seller. Under no other circumstances are any such different or additional terms to be considered a part of this Agreement. (b) No representative or agent of Seller has any authority to make any different or additional representations or warranties on behalf of Seller. (c) All contracts or orders are subject to acceptance and approval by the Seller at its main office.

2. PRICES & PAYMENT TERMS. Prices for the goods described herein (the “Goods”) shall be as in effect at the time of shipment. The price is payable net thirty (30) days unless otherwise agreed upon in the commercial agreement. Interest shall be paid on demand on past due amounts at the rate of two percent (2%) per month or the highest lawful rate, whichever is less.

   • 2.1. ORDER CONFIRMATION, PRICE CHANGE & MINIMUM ORDERS. When your order is placed with «The Vendor», a “sales acknowledgement” is automatically faxed or emailed to you. This is to make sure that the following information is accurate: shipping address, unit cost, part number and quantities, ship date, shipping terms and your order number. Upon receipt of our “sales acknowledgement”, it is your responsibility to inform us immediately of any discrepancy. If no indication of discrepancy is received, your order will be processed as per acknowledgement. Do not hesitate to contact us for any modifications, i.e.: fax number, sales contact, etc. Due to our “just-in-time” production process, «The Vendor» reserves the right to extend the time of delivery according to the quantity ordered. If this modification should occur, the shipping date will be changed accordingly on the “sales acknowledgement”. «The Vendor» reserves the right to change prices and specifications without prior notice.
   • 2.2. MINIMUM ORDERS. For any order under $50 net, $15 administrative fees will be charged, excluding service parts. - Prepaid shipment: $2 000 net (see description of Prepaid at item 3.1).

3. SHIPPING & TRANSPORTATION. (a) The price for the Goods does not include charges for freight, packaging, insurance, or federal, provincial or municipal taxes, all of which are the responsibility of Buyer. Prices are based on shipping the entire order at one time. (b) All shipping dates are estimates and do not guarantee a particular date of shipment. All schedules shall be subject to any reduction in plant capacity and any unavailability of materials or tooling. SELLER SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES (WHETHER INCIDENTAL, CONSEQUENTIAL OR OTHERWISE) RESULTING FROM ANY DELAYS IN SHIPPING OR DAMAGE OCCURRING DURING SHIPPING. (c) Seller may ship the Goods to Buyer’s address as shown on the face hereof (the “Shipping Address”) by any commercially reasonable means and may select the carrier and route. Delivery of the Goods by Seller to a carrier at Buyer’s Plant shall constitute tender of delivery to Buyer for all purposes. All risk of loss with respect to the Goods shall pass to Buyer upon tender of delivery. Seller does not insure Goods against loss or damage in transit. (d) The products covered by this order are subject to an over-run or under-run not exceeding 5% of the quantity specified for any item.

   • 3.1. SHIPMENTS
     COLLECT: All merchandise is packaged carefully to avoid damage in transit. The purchaser assumes full responsibility for shipments sent “collect”, once the merchandise has been picked up at «The Vendor» by the transport carrier.
     PREPAID: «The Vendor» is responsible for all freight claims on prepaid shipments. All damages and / or losses on prepaid shipments must be reported to «The Vendor» within 72 hours after the carrier has delivered the shipment. Upon reception of the merchandise, the customer (receiver) is responsible for counting the number of packages as well as the number of skids. Any irregularity, damage or shortage must be clearly specified on the bill of lading at the time of delivery or «The Vendor» will not be held responsible.

4. BUYER’S RESPONSIBILITY FOR CHOICE AND USE OF GOODS. Buyer acknowledges being fully aware of the inherent limits of performance and use of the Goods and of their maintenance requirements. Buyer has the ultimate responsibility to inform its purchaser(s) or the end-user(s) of the Goods of the aforesaid limits and requirements. Buyer is solely responsible for the choice of the type and model of unit being purchased and seller makes no representations as to suitability for use. Buyer acknowledges that the type and model chosen by the Buyer is based on the following criteria and will be used in a “Building” as defined below: Building: All structures zoned and/or erected for the act, process or art of human or animal habitation and/or the storage or warehousing of goods. Residential use: Dwelling, lodging, suite: Building, or part of a building, intended to act as either the domicile to one or several people which can include general sanitary, food consumption and rest facilities. Buildings of only one room or a group of rooms including those occupied by a tenant or owner; comprise the lodgings, the individual rooms of the motels, hotels, rooming/lodging houses, boarding/half-way/foster homes, dormitories, and suites, as well as the stores and the business establishments constituted by only one room in a dwelling. Commercial use: Agricultural establishment, commercial establishment for assembly, care, or detention: Building or part of a building that does not contain a dwelling, situated on land dedicated to agriculture or farming and used primarily to shelter animals, or for the production, the storage or the treatment of agricultural or horticultural products or animal food. Building or part of a building, used for the display or retail of goods, professional or personal services, or commodities. Building, or part of a building used by persons gathering for civic activities, religious or political assembly, tourism, educational/vocational training, recreation or the consumption of food or drink. Building, or part of a building used to shelter persons of impaired physical or psychological states, persons requiring palliative care or medical treatments, or persons for reasons out of their control, cannot escape harm or threat of danger autonomously. Industrial use: Building, or part of a building, used for the assembly, the manufacture, the creation, the treatment, the repair or the storage of products and combustible materials and that contain fuels that when ignited or exploded in sufficient quantity may constitute a risk of fire.

5. CERTIFICATION OUTSIDE CANADA AND THE UNITED STATES. Buyer hereby acknowledges purchasing Goods that are certified for use in Canada and/or the United States (depending on the certification) and undertakes to ensure that all Goods conform to certification criteria of any other state or country and will assume to the exoneration of Seller the recertification and/or other compliance requirements under the laws of that other state or country.

6. INSPECTION AND ACCEPTANCE; RETURNED GOODS. Buyer at its expense shall inspect the Goods immediately upon receipt at the Shipping Address and, within the following thirty (30) day period, Buyer shall be deemed to have irrevocably accepted the Goods. Goods may not be returned, and will not be accepted for return by Seller, without the prior written approval of Seller. All defective merchandise must be returned within thirty (30) days after its shipment by «The Vendor». A twenty per cent (20%) handling charge will be made on all authorized and acceptable returned merchandise. There will be no handling charge on merchandise found upon «The Vendor» inspection to be defective or on merchandise shipped by «The Vendor» in error.

7. FORCE MAJEURE; ADJUSTMENTS. If performance by Seller is delayed or made impracticable or burdensome by any cause beyond Seller’s control, including, without limitation, acts of God, fire, flood, explosion, vandalism, sabotage, riot, insurrection, severe weather, curtailment or termination of Seller’s regular sources of supplies, inability to obtain or a delay in obtaining licenses, permits, materials or equipment, acts or omission of Buyer, its agents or representatives, shipping delays, strikes or other disputes involving Seller or its subcontractors or suppliers or any existing or future laws or acts of any government or regulatory body, then (i) Seller shall be excused from performance to the extent that and for so long as such performance is delayed or made impracticable or burdensome by such cause, and (ii) Seller may adjust the price of the Goods.

8. CANCELLATION; STOP WORK. (a) Orders are non-cancelable and Buyer shall not be relieved from any obligation under this Agreement without the prior written consent of Seller. (b) In the event of Buyer’s default hereunder, Seller has the right to immediately cancel this Agreement, stop work, refuse to ship or stop delivery of any Goods, recover any losses or damages incurred by Seller as a result thereof, as well as seek any other remedy provided by law. Buyer’s default means (i) Buyer’s insolvency or the filing or institution of a proceeding under any bankruptcy, reorganization or similar law, by or against Buyer, (ii) an assignment for the benefit of creditors by Buyer, (iii) the appointment of a receiver, trustee or custodian for any of the property or assets of Buyer, and (iv) Buyer’s otherwise being in default of any obligation to Seller hereunder or otherwise. (c) By submitting an order to Seller, Buyer warrants, represents and covenants that it is solvent now and will be solvent at shipment and agrees to notify Seller immediately in writing upon the occurrence of any of the events set forth in the foregoing Section 7.

9. LIMITED WARRANTY. Seller warrants the Goods to be free from defects in materials manufactured by Seller and in Seller’s workmanship for a period of one (1) year after tender of delivery (the “Warranty Period”). THIS LIMITED WARRANTY (a) IS IN LIEU OF, AND SELLER DISCLAIMS AND EXCLUDES, ALL OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OF CONFORMITY TO MODELS OR SAMPLES; (b) does not apply to any Goods which have been (i) repaired, altered or improperly installed; (ii) subjected to improper use or storage; (iii) used or incorporated with other materials or equipment, after Buyer or anyone using the Goods has or reasonably should have, knowledge or any defect or nonconformance of the Goods; or (iv) manufactured, fabricated or assembled by anyone other than Seller; (c) shall not be effective unless Buyer notifies Seller in writing of any purported defect or nonconformance within thirty (30) days after Buyer discovers or should have reasonably discovered such purported defect or nonconformance; and (d) shall only extend to Buyer and not to any subsequent buyers or users of the Goods. Buyer shall provide Seller access to the Goods as to which Buyer claims a purported defect or nonconformance. Upon request by Seller, Buyer shall, at its own risk and expense, promptly return the Goods in question to Seller’s Plant.

10. BUYER’S REMEDIES. Sellers’ liability for any breach of this limited warranty is limited to either (i) repair or replacement of any nonconforming components of the Goods, or (ii) upon return of the nonconforming Goods, return of the amount paid therefore, whichever Seller shall elect. Seller’s liability shall in no event be greater than the price of the item and shall not include any labor, shipping or other costs incurred in connection with any such repair, replacement, reinstallation or reshipment. Any nonconforming Goods returned to Seller must be accompanied by proof of purchase and the transportation of the Goods must be prepaid. Any Goods that are repaired or replaced by Seller shall be re-delivered to Buyer F.O.B. Seller’s Plant and shall be warranted, subject to the terms hereof, until the expiration of the original Warranty Period. Notwithstanding the foregoing, Seller shall have no warranty obligations unless and until Buyer performs all its obligations hereunder, including payment in full of the purchase price. THE REMEDY SET FORTH IN THIS PARAGRAPH SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AGAINST SELLER AND BUYER WAIVES ALL OTHER REMEDIES AGAINST SELLER.

11. INDEMNIFICATION. Buyer shall defend, indemnify and hold harmless Seller and its shareholders, directors, officers, affiliates, predecessors, successors and assigns, from and against any and all claims, actions, causes of action, liabilities, liens, losses and costs (including, without limitation, the costs of litigation and attorneys’ fees), relating to the Goods or any device, material or thing to which the Goods are attached or of which the Goods are made a part of within which the Goods are enclosed, regardless or whether Seller may be wholly, concurrently, partially, jointly or solely negligent or otherwise at fault.

12. LIMITATION OF LIABILITY IN GENERAL. Except as provided herein, in no event whatsoever shall Seller or any of its shareholders, directors, officers, affiliates, predecessors, successors and assigns, for any loss or damages on any kind, whether direct, incidental, consequential, exemplary, special or otherwise relating in any way to this Agreement or acts of omissions in connection herewith (including, without limitation, the performance or non-performance of this Agreement and the use of or the loss of use of any of the Goods or other property), regardless of whether Seller and/or others may be wholly, concurrently, partially, jointly or solely negligent or otherwise at fault.

13. TIME LIMITATION ON ACTIONS; WAIVER. (a) Any action by Buyer relating to this Agreement or the Goods must be commenced not later than one (1) year after tender of delivery of the Goods. If Buyer fails to commence any such action within such one (1) year, the action shall be deemed barred and Seller shall have no liability whatsoever to Buyer. (b) No failure of Seller to require strict performance by Buyer of this Agreement shall waive, affect or diminish any right of Seller to demand strict performance of this Agreement thereafter. The rights and remedies herein reserved to Seller shall be cumulative and in addition to any other rights and remedies provided by law.

14. SELLER’S RIGHTS IN GOODS SOLD. All merchandise remains the property of Seller until the purchase price has been fully paid.

15. COSTS OF COLLECTION. Should Seller be required to retain attorneys to recover any unpaid amount in capital and/or interest, Buyer will pay as a penalty an amount equal to twenty five per cent (25%) of the amounts there owed as compensation for the fees and disbursements incurred in the recovery, regardless of the actual amounts incurred by Seller.

16. GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be deemed to have been made under, and shall be construed and interpreted in accordance with, the substantive laws of Ontario, without regard to any choice of law rules or principles. Buyer hereby submits to the jurisdiction of the courts of the Province of Ontario, and said courts shall have exclusive jurisdiction and venue to adjudicate the rights and obligations of the parties relating in any manner to this Agreement.

17. SEVERABILITY. If any provision of this Agreement is held by any court to be invalid or unenforceable, such provision shall be deemed to be modified or deleted, but only to the extent necessary to enable that and the remaining provisions of this Agreement to be valid and enforceable.

18. NO ASSIGNMENT. Buyer may not assign any rights or obligations under this Agreement without prior written consent of Seller