Terms and Conditions
STANDARD TERMS AND CONDITIONS
1. GENERAL: The terms and conditions in this document (these “Terms”) shall be included in the terms of the contract between the parties (the “Agreement”). All sales of goods and services (collectively, “Products”) by MacLean Engineering & Marketing Co. Limited (“Seller”) under the Agreement are expressly conditioned under these Terms which supersede all prior negotiations, correspondence and statements between the parties. These Terms may in some instances conflict with those of the ordering party’s (“Buyer’s”) purchase order or other order documents. If so, any Buyer’s terms that are not in conformance with these Terms are rejected and these Terms shall govern. Acceptance of Buyer’s order is expressly conditioned upon Buyer’s acceptance of or assent to these Terms which shall be established by a written acknowledgement, by implication or by acceptance of or payment for Products ordered hereunder. Seller’s failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of these Terms. Any changes in these Terms must specifically be agreed to in writing and signed by an officer of Seller before becoming binding. Delivery of a purchase order by Buyer shall conclusively be deemed acceptance of these Terms.
2. DEPOSIT: All orders under the Agreement require a Buyer’s purchase order to be accompanied by a twenty percent (20%) deposit of the total Product purchase price, which is to be received by Seller prior to Product shipment and to be applied to the invoiced cost. Once received by Seller, Buyer’s purchase order is non-cancellable and may not be revised by Buyer except with Seller’s express written consent. If Seller consents to cancellation, then Buyer will be charged:
- Fifteen percent (15%) of the total purchase price to cover sales administration and handling costs, plus
b. The cost of all unfinished material, shop labour (with overhead), component cancellation charges from Seller’s vendors (if any), engineering cost incurred (with overhead) and Seller’s profit (in proportion to the state of completion of the Products at the time of cancellation of the order).
Deposits are non-refundable and shall be retained by Seller and applied to the cancellation charges set out above.
3. SHIPMENT: All shipments are made Ex Works (Incoterms 2010) Seller’s plant in Collingwood, Ontario, unless otherwise expressly provided in Seller’s invoice. All shipping charges are the responsibility of Buyer. In the absence of Buyer’s written instructions, Seller will select the carrier or delivery service. Title to Products and risk of loss will pass to buyer upon delivery thereof by Seller to the carrier or delivery service. Buyer assumes all risk of loss in shipping and all liability for loss or damages, whether direct, indirect, consequential or otherwise, due to delays once the Products have been delivered to the carrier or delivery service. Buyer agrees to purchase any and all insurance it deems necessary to indemnify it against any loss or damage in shipping. If Seller agrees to provide any insurance, then Buyer shall reimburse Seller for all such insurance costs immediately upon receiving an invoice therefor. The Product purchase price includes ordinary packing for shipment, but all costs relating to any special packing, or tie-down and blocking to anchor Products to transport vehicles, shall be reimbursed to Seller by Buyer.
4. DELAYS: Unless otherwise expressly provided in the Agreement, time for completion of manufacture of machinery and equipment covered by Product orders shall be computed from the later of the date: (i) of Seller’s written acknowledgment and acceptance of Buyer’s order (“Seller’s Order Acceptance”), or (ii) on which Seller has received from Buyer all information, drawings, data, patterns, or other material required by Seller to proceed with any required manufacture or modification of the machinery or equipment. Seller shall not be responsible for delays in delivery or any failure to deliver Products due to any act of God, strike, lockout, labor dispute, political dispute, sabotage, riot, civil unrest, insurrection, war, other military action, fire, tempest, accident, machinery or equipment failure, inability to obtain materials or components, energy shortage, statutory intervention, government regulation, government imposed production or shipment restrictions, or any other reason beyond its reasonable control. Prices quoted are based on shipment dates indicated. If shipment is delayed: (a) at the request of Buyer, (b) because of incomplete shipping information or documentation, or a delay in any other information required from Buyer to complete an order, or (c) because of delay in receipt of a letter of credit (if applicable), then Seller reserves the right to charge Buyer for any extra costs resulting from the delay.
5. INSPECTION AND TESTING: Any machinery or equipment forming part of a Product order will be subject to standard Seller inspection and testing before shipment. Any other inspection or testing required by Buyer must be specified in writing at time of order and shall be at Buyer’s expense unless otherwise expressly stated in the Agreement. Buyer will be responsible for costs of all inspection and testing requested after Seller’s Order Acceptance and for any costs relating to any resulting delays in shipment.
6. MISCELLANEOUS PRODUCT ORDERING DETAILS: Design and improvement of Seller’s machinery and equipment is a continuous process. Seller, therefore, reserves the right to make design improvements after receipt of an order. Photographs and other illustrations or advertising materials generally present the Products offered but are not binding in any detail. Delivery dates are estimated as accurately as possible but are not guaranteed in any way unless otherwise expressly stated as such in writing in the Agreement. Seller requires that a hard copy of Buyer’s purchase order relating to any machinery or equipment Products being purchased be received no less than 16 (sixteen) weeks prior to the machinery or equipment going into production.
7. PAYMENTS: Buyer shall pay Seller all undisputed invoices in accordance with the payment terms indicated in the applicable Seller invoice. Buyer is liable for any taxes (other than Seller’s income taxes) and duties related to Products purchased under this Agreement or shall present to Seller an exemption certificate acceptable to the applicable authorities. Applicable taxes and duties shall be billed as a separate item on Seller’s invoices. If any payment due hereunder is not made on the payment date, Buyer will pay Seller interest from the date payment is due until payment is received by Seller, as compensation for additional administrative and other like expenses incurred by Seller but not as penalty, at the prime rate announced from time to time by the Royal Bank of Canada, plus 5% per annum, calculated daily on all sums not received by Seller when due and owing. If payment of any part of a Product purchase price is not made as provided in any invoice issued to Buyer from Seller, Seller reserves the right: (i) to discontinue manufacture of any corresponding machinery or equipment ordered by Buyer until such payment has been made, and (ii) to revoke any further credit, whereupon Seller shall have the right to receive payment before any further shipment of machinery or equipment. In the case of any delay in payment or in establishing agreed security for payment, time for completion may, at Seller’s option, be extended for a corresponding period. When any payment is due upon shipment or delivery and shipment is delayed for any cause beyond Seller’s control, payment shall be made when the machinery is ready for shipment. Buyer agrees that any letters of credit or other guarantee of payment shall be maintained fully valid until final payment has been made.
8. SECURITY INTEREST: If possession of any machinery or equipment is given to Buyer before full payment, Buyer hereby grants a security interest in the machinery to Seller and shall execute any additional instruments including without limitation security agreements and financing statements necessary to perfect or maintain Seller’s security interest and shall pay or reimburse Seller for all filing and recording costs including without limitation, any taxes payable upon filing or recording. In the event of default in payment of any installment of the purchase price when due, the entire balance thereof shall, at Seller’s option, become immediately due and payable, and Seller shall have and may exercise all the rights of a secured party under the Personal Property Security Act (Ontario), including without limitation the right to repossess the machinery with or without legal process.
9. LIMITED WARRANTY: Seller warrants certain machinery, equipment and replacement parts from its Mining Division, from its line of municipal vehicles and associated accessories, and from its Hazpak systems and parts under specific warranty statements provided by Seller in associated Product documentation (each a “Warranty Statement”, copies of which are available from Seller upon request). Those Warranty Statements, including their Warranty Claim Procedures and Warranty Consideration provisions, apply exclusively to those Products respectively. For all other Products (“Other Products”), Seller warrants to Buyer for a period of ninety (90) days from the date of shipment from Seller’s plant: (i) the Other Products will materially conform to corresponding specifications in Seller’s quotation when delivered, and (ii) subject to the provisions of Section 8 of these Terms, Seller will convey good title thereto and such Products will be delivered free and clear from any lawful security interest or other lien or encumbrance created by or through Seller.
10. REMEDY: If any Other Products are found by Seller to have been defective at the time they were sold to Buyer, Buyer’s sole remedy for any breach of the Other Product warranties provided in Section 9(i) of these Terms will be for Seller to: (i) repair the Other Products Ex Works its factory in Collingwood, Ontario, or (ii) replace the Other Products with a similar part. This remedy: (a) is conditional upon all Products claimed to be defective having been returned, properly identified, to Seller’s factory, charges prepaid, and (b) applies only to Other Products which are new and unused, and which have not been altered, changed, repaired or mistreated in any manner whatsoever, unless such modifications have been pre-authorized by Seller in writing or have been performed by Seller’s authorized service representative.
11. EXCLUSION OF WARRANTIES: EXCEPT AS EXPRESSLY PROVIDED OR REFERENCED IN THESE TERMS, SELLER EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, AND OF FITNESS FOR A PARTICULAR PURPOSE. SELLER DOES NOT WARRANT THAT THE PRODUCTS WILL MEET BUYER’S REQUIREMENTS, THAT THEIR OPERATION WILL BE UNINTERRUPTED OR DEFECT-FREE, THAT DEFECTS IN THEM WILL BE CORRECTED, OR THAT THEY WILL BE COMPATIBLE WITH FUTURE SELLER PRODUCTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SELLER OR A SELLER AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY OR CONDITION.
12. LIMITATION OF LIABILITY: EXCEPT TO THE EXTENT SUCH A LIMITATION IS PROHIBITED BY LAW, IN NO EVENT WILL SELLER BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT OR BUYER’S USE OR INABILITY TO USE THE PRODUCTS WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
IN NO EVENT WILL SELLER’S TOTAL LIABILITY TO BUYER FOR ALL DAMAGES AND CLAIMS UNDER OR RELATED TO THE AGREEMENT EXCEED THE AMOUNT PAID OR DUE UNDER THE APPLICABLE ORDER FOR THE FIRST ORDER OF PRODUCTS UNDER THE AGREEMENT GIVING RISE TO A CLAIM.
13. INDEMNIFICATION OF SELLER: Buyer agrees to hold Seller harmless from, and to indemnify it against, any and all claims, demands, actions, and causes of action of any nature whatsoever, and any expenses incident to the defense thereof, for injury to or death of persons and loss of or damage to property arising in connection with the Products or the assembly, erection, operation, or use thereof. Seller shall be under no obligation after shipment to assemble, erect or test the machinery unless otherwise expressly stated as such in writing in the Agreement. If the contract provided for instruction or installation services, Seller’s sole obligation with respect hereto shall be to provide Buyer at its expense (unless otherwise provided herein) an experienced person or persons, who shall become the agent or agents of Buyer and remain such for the period provided. Seller shall under no circumstances be liable to Buyer or anyone else for any acts or omissions of any such person or persons.
14. INDEMNIFICATION OF BUYER: Except as provided under Section 15 (Limitations), in the event of a suit against Buyer based upon a claim that the Products infringe any third-party intellectual property rights, Seller agrees, subject to the limitations of Section 12 (Limitation of Liability), to defend Buyer, at Seller’s expense, and to pay, indemnity and hold Buyer harmless from any costs and damages finally awarded by a court of competent jurisdiction in any such suit or agreed to in any settlement, provided that: (i) Seller is promptly notified by Buyer, in writing, of any threats, claims and proceedings related thereto, (ii) Seller has sole control of the defense and any settlement thereof, (iii) Buyer does not make any admission of liability nor settle or otherwise compromise any such claim without Seller’s prior written consent, (iv) Buyer furnishes to Seller, upon request, any information reasonably available to Buyer relating to the defense of such claim, (v) Buyer provides reasonable assistance to Seller in the defense of such claim, and (vi) Buyer ceases use of the Products which are the subject of the infringement claim upon receipt from Seller of any non-infringing replacement for such Products.
THE FOREGOING STATES THE ENTIRE LIABILITY OF SELLER WITH RESPECT TO INFRINGEMENT BY THE PRODUCTS OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
15. LIMITATIONS: Seller will have no liability under Section 14 (Indemnification of Buyer) to the extent any infringement arises from: (a) a Product component that was not developed or manufactured by Seller, (b) a combination of the Products with other hardware, software or other materials not supplied by Seller, if such infringement would not have occurred but for such combination, or (c) any modification of the Products by or for Buyer, if such infringement would not have occurred but for such modification. If either a third party alleges, or Seller has any concerns, that any Product (or component thereof) infringes or may infringe the intellectual property rights of a third party, then without any admission of liability, Seller at its option and expense may develop an update to the relevant Product (or component) which in Seller’s opinion avoids such alleged infringement and, upon receipt of such update from Seller, Buyer will immediately cease use of the Product (or component) which the update replaces. Seller will only be liable under Section 14 (Indemnification of Buyer) for costs and damages finally awarded by the court, for infringement by the Product of the intellectual property rights of a third party, up to the date upon which the court issues its judgment. Seller will have no continuing liability under Section 14 for any loss suffered by Buyer in respect of the same infringement after the date of such judgment.
16. IMPACT AND BENEFIT AGREEMENTS (IBA’S): Where Buyer enters into an impact and benefit agreement, or any other similar agreement, with any First Nation, Indigenous or Aboriginal group or community (each an “IBA”), and where Seller incurs any additional, new or increased cost, expense, charge, duty, tax, commission, royalty or other amount including, but not limited to, administrative and governance costs, cultural training costs, handling fees, community liaising costs, employee recruitment costs, employee training costs, and preferred business status costs relating to its performance of its obligations under the Agreement in conjunction with such IBA (collectively, “IBA Costs”), Buyer shall reimburse Seller for any such IBA Costs which amounts will be invoiced by Seller to Buyer on a monthly basis without any reduction or other set-off in regard to amounts payable to Seller under the Agreement.
17. MISCELLANEOUS: The Agreement (including these Terms, applicable Warranty Statements, and non-conflicting terms of Seller’s quote and Buyer’s purchase order) states the entire agreement between Buyer and Seller regarding the Products to be provided and supersedes any prior or contemporaneous agreements, understandings and communications. The Agreement may not be modified except by written agreement signed by the party against which it is to be enforced, however, stenographic and clerical errors and omissions in invoices may be corrected by Seller. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be enforced to the maximum extent possible and the other provisions will remain in full force and effect. The failure by either party to enforce any provision of the Agreement will not constitute a waiver of future enforcement of that or any other provision of the Agreement. Buyer may not assign this Agreement or assign any rights or delegate any obligations under the Agreement, without the prior written consent of Seller. Any attempted assignment in violation of the foregoing will be void and of no effect. Unless otherwise expressly stated, when used in this Agreement “include,” “includes,” and “including” are not exclusive or limiting. The Agreement will be governed and construed in accordance with the laws of the Province of Ontario, Canada, without regard to the conflicts of laws provisions thereof, and the parties irrevocably submit to the non-exclusive jurisdiction of the courts located in the Province of Ontario, Canada. The United Nations Convention on Contracts for the International Sale of Goods will not apply.
