Specifications are subject to change without notice
Terms & Cond.
TERMS AND CONDITIONS
costs and expenses therefore, including but not limited to Attorney’s fees, and indemnifies Seller
against any liability to Seller’s vendors arising out of such litigation;
(i) THE FOREGOING IS SELLER’S ONLY OBLIGATION AND BUYER’S EXCLUSIVE REMEDY
FOR BREACH OF WARRANTY. BUYER’S FAILURE TO SUBMIT A CLAIM AS PROVIDED ABOVE
SHALL SERVE TO SPECIFICALLY WAIVE ALL CLAIMS FOR DAMAGES OR OTHER RELIEF
INCLUDING BUT NOT LIMITED TO CLAIMS BASED ON LATENT DEFECTS. EVEN IF THE
REPAIRORREPLACEMENTREMEDYSHALLBEDEEMEDTOHAVEFAILEDOF ITSESSENTIAL
PURPOSE UNDER SECTION 2-719 OF THE UNIFORM COMMERCIAL CODE OR OTHERWISE,
SELLER SHALL HAVE NO LIABILITY TO BUYER FOR CONSEQUENTIAL DAMAGES, SUCH
AS LOST PROFITS, LOST REVENUES, DAMAGE TO OTHER EQUIPMENT OR LIABILITY OR
INJURY TO A THIRD PARTY. IN NO EVENT SHALL BUYER BE ENTITLED TO INCIDENTAL
CONSEQUENTIAL, OR SPECIAL DAMAGES, NOR SHALL SELLER’S LIABILITY EXCEED THE
PURCHASEPRICEOFTHEGOODS.ANYACTIONARISINGHEREUNDERORRELATEDHERETO
MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OCCURS OR
IT SHALL BE BARRED, NOTWITHSTANDING ANY STATUTORY PERIOD OF LIMITATIONS TO
THE CONTRARY; and
(j) In the event of the resale of any of the Goods, in whatever form, Buyer will include the following
language in a conspicuous place and in a conspicuous manner in a written agreement covering
such resale: “THE MANUFACTURER MAKES NO WARRANTIES OR REPRESENTATIONS,
EXPRESSOR IMPLIED,BYOPERATIONOFLAWOROTHERWISE,ASTOTHEMECHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE OF THE GOODS SOLD HEREUNDER. BUYER
ACKNOWLEDGES THAT IT ALONE HAS DETERMINED THAT THE GOODS PURCHASED
HEREUNDER WILL SUITABLY MEET THE REQUIREMENTS OF THEIR INTENDED USE. IN
NO EVENT WILL MANUFACTURER BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL OR
OTHER DAMAGES.” In the event of the resale of any of the Goods, in whatever form, Buyer
will include the following language in a conspicuous place and in a conspicuous manner in a
written agreement covering such resale: “THE MANFACTURER MAKES NO WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED, BY OPERATIONOF LAWOROTHERWISE, AS TO
THE MECHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE GOODS SOLD
HEREUNDER,BUYERACKNOWLEDGESTHAT ITALONEHASDETERMINEDTHATTHEGOODS
PURCHASED HEREUNDERWILL SUITABLYMEET THE REQUIREMENTS OF THEIR INTENDED
USE, IN NO EVENT WILL MANUFACTURER BE LIABLE FOR CONSEQUENTIAL, INCIDENTIAL
OR OTHER DAMAGES.”
(k) Nuclear Use Disclaimer – Goods sold by Seller are not intended for use in connection with any
nuclear facility or activity. If so used, Seller disclaims all liability for any nuclear damage, injury
or contamination, and Buyer shall indemnify and hold Seller, its officers, agents, employees,
successors, assigns and customers harmless from and against any and all losses, damages or
expenses of whatever form or nature (including attorney’s fees and other costs of defending any
action) which they or any of themmay sustain or incur, whether as a result of breach of contract,
warranty, tort (including negligence) or otherwise, by reason of such use.
13. REMEDIES AND LIMITATIONS OF LIABILITY.
In the event Buyer claims Seller has breached any of its obligations under the Sales Contract,
whether of warranty or otherwise, Seller may request the return of Goods and tender to Buyer, at
Seller’soption,areplacementshipmentofGoods. IfSellersorequeststhereturnoftheGoods,the
GoodswillberedeliveredtoSeller inaccordancewithSeller’s instructionsandatBuyer’sexpense.
Except as herein provided, Seller shall have no further obligation under the Sales Contract. The
remedies contained in this paragraph and paragraph 12 hereof shall constitute the sole recourse
of Buyer against Seller for breach of any Seller’s obligations under the Sales Contract, whether
warranty or otherwise.
14. TECHNICAL ADVICE.
Any technical advice furnished or recommendation made by Seller or any representative of Seller
concerning any use or application of any of the Goods is believed to be reliable, but SELLER
MAKES NO WARRANTY, EXPRESSED OR IMPLIED, ON RESULTS TO BE OBTAINED. BUYER
ASSUMES ALL RESPONSIBILITY FOR LOSS OR DAMAGE RESULTING FROM THE HANDLING
OR USE OF ANY OF THE GOODS.
15. FORCE MAJEURE.
Seller shall not be liable for failure to perform its obligations under the Sales Contract in whole
or in part caused by the occurrence of any contingencies beyond the reasonable control either
of Seller or of suppliers of Seller. If any such contingency occurs, Seller may allocate Goods and
deliveries among Seller’s customers.
16. ASSIGNMENT AND DELEGATION.
No right or interest in the Sales Contract shall be assigned by Buyer without Seller’s prior written
consent, and no delegation of any obligation owed, or the performance of any obligation by Buyer
shall be made without Seller’s prior written consent. Any attempt at assignment or delegation
shall be wholly void and totally ineffective for all purposes unless made in conformity with this
paragraph.
17. PATTERNS AND TOOLING.
Unless otherwise agreed to in writing with Buyer, Seller shall retain title to and possession of
all special tooling, patterns and dies whether paid for by Buyer or not, but such special tooling,
patterns and dies that are specifically paid for by Buyer will be held by Seller exclusively for the
manufacture of Buyer’s Goods for not more than 2 years after the date of Buyer’s last order
requiringtheiruse.Sellerwillexercisereasonablecare inhandlingandstoringanytooling,patterns
or dies specifically paid for by Buyer, but Seller shall not be liable for damage or loss thereof.
18. PATENTS -- SELLER MAKES NO REPRESENTATION OR WARRANTY WITH
RESPECT TO THE PATENTABILITY OF THE GOODS OR THAT ANY OF THE
GOODS WILL BE FREE FROM CLAIMS OF INFRINGEMENT.
Buyer agrees to indemnify and defend Seller in any such suit, action or proceeding for any claim
resulting from actual or alleged infringement of any domestic or foreign patent for (i) any failure,
construction or design incorporated at Buyer’s request in any goods or to adapt such goods to
the particular use of Buyer or Buyer’s customers or (ii) any additions, changes or adaptations
made by Buyer or Buyer’s customers after delivery of the goods.
19. CONFIDENTIAL INFORMATION.
All drawings, diagrams, specifications, technical data and other materials furnished by Seller
and identified by Seller as confidential are and shall remain the exclusive property of Seller and
shall be returned to Seller upon request. Buyer agrees to treat such information and material as
confidential and not to reproduce or disclose such information or materials without Seller’s prior
written consent. This paragraph does not apply to any information already known to and readily
accessible in the trade or which may become so through no fault of Buyer.
20. CHANGES.
Seller may, at any time, without notice, make changes (whether in design, material, improvements
or otherwise) in any catalogue goods, and may discontinue the manufacture of any catalogue
goods, all in its sole discretion, without incurring any obligations of any kind as a result thereof,
whether for failure to fill an order of Buyer or otherwise.
21. CANCELLATION.
TheBuyermaynotcancelpurchaseorderswithoutthepriorwrittenconsentofSeller.Thisconsent
will be conditioned on Buyer’s agreement to pay Seller’s cancellation charge. Purchase orders
for Goods that are substantially complete, as judged by Seller, may not be cancelled; and will be
shipped and invoiced at the price on the order. For Goods that are not substantially complete,
the cancellation charge shall amount to all costs and expenses incurred by Seller and arising out
of or in connection with Buyer’s order, net of recoverability, but in no event less than 10% of the
total invoice price of the equipment or more than the total invoice price.
22. INSTALLATION.
Installation of the Goods shall be by Buyer unless otherwise specifically stated in the Sales
Contract.
23. SEVERABILITY.
If any term or provision contained in the Sales Contract is declared or held invalid by a court of
competent jurisdiction, such declaration or holding shall not affect the validity of any other term,
clause or provision contained herein.
24. GOVERNING LAW AND LIMITATION.
(a) The formation and performance of the Sales Contract shall be deemed to have beenmade and
governed by and construed in accordance with the laws of the Province of Ontario, Canada (b)
Buyer hereby agrees to the jurisdiction of any province or federal court located in the county of
Seller’s principal place of business. Buyer waives any objection based on forum non conveniens
and any objection to venue of any action instituted hereunder, and consents to the granting of
such legal or equitable relief as is deemed appropriate by a court of competent jurisdiction; (c) (c)
The Seller and the Buyer expressly exclude the application of the United Nations Convention on
Contracts for the International Sale of Goods; and (d) Attorney’s Fees – Buyer agrees to pay all
of Seller’s costs and expenses of collection and litigation, including but not limited to attorney’s
fees and costs.
Revised November 7, 2011
