1. Acceptance. The terms and conditions herein
contained and any additional “Supplement to Sales Agreement” shall constitute
the only agreement between the Seller and the Buyer. Any terms and conditions originating with the
Buyer are hereby expressly rejected and shall not become part of the contract
between the Buyer and the Seller unless specifically accepted in writing by a
duly authorized officer of the Seller. The Seller’s quotation is made subject
to prior sales to third parties. In any
event, said quotation will become void if not accepted by the Buyer within 30
days from the date of the offer. Seller reserves the right to hold shipment of
telephone or oral orders until written confirmation has been received from
Buyer. Buyer assumes full responsibility
for inaccurate or incomplete date supplied on special orders.
2. Prices.
All prices are subject to change without notice at any time and are based in
part on the applicability of Sales Agreement set forth herein. Should the Buyer desire other or different
terms, the prices may be adjusted accordingly.
Prices are those in effect at the time the order is received at Avestin,
Inc.,
3. Taxes/Duty. Prices do not include any sales, use,
excise, property or other such taxes, or duties, that may be levied on the
transaction by local, provincial, federal or foreign governments. Any taxes/duties Seller is required to
collect from the Buyer will be added to the invoice or billed separately to the
Buyer.
4. Terms of Payment. Unless otherwise
specified in the Seller’s quotation, the terms of payment will be net cash 30
days from date of shipment, subject to credit approval by Seller’s credit
department. Payment terms that have been
negotiated between Seller and Buyer will be outlined on the quotation prepared
by the Seller. In cases where shipment
of a completed product is delayed at the request of the Buyer, Seller reserves
right to issue invoice for the product as of the date it becomes ready for shipment. Late charges at the rate of 2% per month (24%
annually) may be charged on past due accounts.
Choice of currency of payment will be outlined on the quotation prepared
by the Seller.
5. Production and Performance Estimates. Any projected
production figures and performance data are estimates based on Seller’s
understanding of routinely available facilities, operator skill, and other
specified factors affecting production, and do not constitute a guarantee of
production. The Seller makes no claims
concerning the suitability of its products with regard to the Buyer's current
or future requirements. It is the sole
responsibility of the Buyer to evaluate the product to the Buyer's satisfaction
under actual service conditions prior to product purchase.
6. Warning. The Seller’s equipment is capable of
producing very high fluid pressures. It
is the Buyer’s responsibility to train its operators to use the Seller’s
equipment safely.
7. Delivery. The quoted delivery dates are
approximate and a more specific date will be established upon the Seller’s
acceptance of Buyer’s order. Delivery
dates are subject to revision at any time due to causes beyond the Seller’s
control. These would include, but not be
limited to, delay in receipt of Purchaser’s signed order or complete
specifications, fire, shortages of material, transportation delays, strikes,
failure of suppliers or subcontractors to meet delivery schedules, war, riots,
and any action by or prior system imposed by authority of any government
agency. Any delay or nondelivery caused
by the foregoing shall not result in liability for the Seller. Delivery to a common carrier or licensed
tracker shall constitute tender of delivery to the Buyer and all risk of loss
or damage in transit shall be borne by the Buyer from the time the Product
leaves the Seller's premises. From this time on, the Buyer must pay the
purchase price notwithstanding the loss of the goods. In no event shall the
Seller be held liable for damages or contingent expenses caused by delays in delivery.
Seller reserves the right to stoppage in transit and to repossess equipment
notwithstanding delivery to the carrier, until payment in full has been made to
Seller. Buyer, by acceptance of the products, grants a security interest to
Seller in such products until paid in full together with all of the rights and
remedies of a secured party under the Personal Property Security Act or other
similar legislation. No claim relating to quantity, condition, loss or damage
to the goods made by Buyer will be accepted by Seller after thirty (30) days
after date of shipment.
8. Warranty, Disclaimer, Limitation of Liability
and Remedy. Seller
warrants to the original Buyer only that Product manufactured by the Seller and
sold directly by the Seller or through an authorized representative and used by
the original Buyer within limits of rated and normal usage will be free from
defects which are not commercially acceptable in material and workmanship for a
period of one year from date of shipment, or 500 operating hours, whichever
comes first. This warranty does not include parts subject to wear and tear nor
failures caused by lack of proper maintenance, incompatible fluids, foreign
materials in air and/or fluid media, or application of pressures beyond
published values. Seller's obligation and liability with respect to components
not manufactured by the Seller shall be limited to the extent of express
warranties received by Seller from such component manufacturers. This warranty
is void and of no effect and Seller shall not be liable for any breach of
warranty, express or implied, if the equipment or any part or component thereof
shall have been repaired or altered by persons other than the Seller unless
expressly authorized in writing by Seller, or if the equipment is operated or
installed contrary to Seller's instruction or subjected to misuse, negligence
or accident. Written notice of any claimed defect within the warranty period
must be presented to the Seller immediately upon Buyer's discovery of the
defect. Seller shall have the option to inspect any parts claimed to be
defective either at the Buyer's place of business or at the Seller's place of
manufacture while the product is in the claimed defective condition. No return
shall be accepted unless Seller has had an opportunity to inspect the equipment
or has expressly authorized the return. Operation of the product must be
suspended until written clearance is issued for continued operation provided
that Seller upon receipt of written notice of a claimed defect will proceed
without unreasonable delay to remedy any defect coming within the warranty
which is found to exist. During the warranty period, parts found to be
defective by Seller's inspection will be furnished free of charge. There are no
other warranties that extend beyond the warranty herein contained. The warranty stated herein is in lieu of all
other warranties express or implied, including but not limited to any implied
warranty of merchantability or fitness for a particular purpose and is in lieu
of any and all other obligations or liabilities on Seller's part. No statement,
oral or written, inconsistent with this warranty is binding on the Seller. No
agent, employee or representative of the Seller, other than an officer, duly
authorized, has any authority to bind the Seller to any confirmation,
representation or warranty concerning the Seller's product beyond that
specifically included in the confirmation, representation or warranty
concerning the Seller's product beyond that specifically included in the warranty
contained herein. Under no circumstances will the Seller be liable for any
incidental or consequential damage or expense of any kind, including but not
limited to personal injuries and loss of profits, arising in connection with
any contract or with the use, abuse, unsafe use or inability to use Seller's
products. Seller's maximum liability shall not exceed, and Buyer's remedy is
limited to either (a) repair or replacement of the defective part or product or
at the Seller's option, (b) return of the product and refund of the purchase
price; and such remedy shall be the Buyer's entire and exclusive remedy. The
sole purpose of the stipulated exclusive remedy shall be to provide the Buyer
with free repair or replacement of defective products, or refund of the
purchase price at the Seller's option, in the manner provided herein. This
exclusive remedy shall not be deemed to have failed of its essential purpose so
long as Seller is willing and able to repair or replace defective products, or
to refund the purchase price, in the prescribed manner.
9. Indemnification. Buyer agrees to
indemnify and hold Seller harmless from any and all liability, loss or damages
which Seller may suffer as a result of claims, demands, costs or judgments made
against Seller arising out of any use whatsoever of the machinery and equipment
sold pursuant to this Agreement, which liability, loss or damages, claims,
demands or judgments are based upon or result from (a) any alteration or
modification of the machinery or equipment by Buyer, Buyer's officers, agents
or employees; or (b) the failure of Buyer, Buyer's officers, agents or
employees to follow manufacturer's instructions, warnings or recommendations
which are communicated by Seller to Buyer in any form before, during or after
the time of this sale; or (c) the failure of Buyer, Buyer's officers, agents or
employees to comply with federal, state, or local laws or regulations
applicable to the use of such machinery or equipment; or (d) the failure of
Buyer, Buyer's officers, agents or employees to properly train and instruct
anyone using such machinery or equipment.
10. Repair and Service - Non-Warranty. The cost of all
servicing of equipment not provided for in preceding sections may be charged
for by the Seller at a per diem rate per man per workday plus transportation
and living expenses.
11. Property Rights. Seller retains for
itself any and all property rights in and to all designs, engineering details
and other data pertaining to any equipment designed in connection herewith and
to all rights of discovery, invention or patent rights arising out of work done
for Buyer. The Buyer expressly agrees that it will not assert any property
rights therein, except the rights for itself and subsequent owners to use the
equipment. Any prints, brochures, drawings or other information furnished to
the Buyer by the Seller are intended solely for the confidential use by the
Buyer and shall remain the property of the Seller, and shall not be used to the
detriment of the Seller's competitive position.
12. Patent Indemnity. If any product furnished
by the Seller is rightfully claimed to infringe any Canadian or United States
Patent issued at the time Buyer's order is accepted, Seller agrees at its
option; (1) to procure for the Buyer the right to use the product, or (2) to
modify or replace the product so as to avoid infringement, or (3) to accept
redelivery of the product and reimburse Buyer for the purchase price and any
transportation expenses incurred by Buyer. Should any litigation be instituted
against Buyer based on a claim that any product in the condition received from
Seller infringes any Canadian or United States patent, Seller will undertake
the defense thereof in Buyer’s behalf and pay any damages and costs awarded
therein against Buyer, provided Seller is given prompt written notice and is
furnished with copies of all demands, process and pleadings, and Buyer
cooperates fully in giving Seller authority, information and assistance at
Seller's expense for such defense, as well as control over the defense and any
negotiations with regard to settlement. The foregoing represents Seller's
entire and exclusive obligation with respect to any charge of patent
infringement and is in lieu of any statutory warranty relating to infringement. Seller shall have no responsibility insofar
as any product is modified by Buyer or is made or modified by Seller in
accordance with Buyer's order and Buyer shall indemnify Seller in accordance
with the indemnity in paragraph "15" above for any claim which arises
out of Seller's compliance with Buyer's specifications. Seller shall also have no responsibility with
regard to any settlement, admission or promise made by Buyer without Seller's
prior written consent, nor shall Seller be liable for any indirect, special or
consequential damages of any nature whatsoever, including loss of profits,
claimed to have been sustained by Buyer or any user of the product arising out
of any claim of infringement. Seller is
not responsible for the infringement of any Patent
resulting from the Buyer's use of any of the Seller's products. Seller is
entitled to indemnity from certain of its suppliers and the rights and options
vested in Seller shall extend to such suppliers and may be exercised by them.
13. Reservation of Rights. Seller reserves the
right to make subsequent improvements and changes in design in its products
without imposing any obligation to make such changes or improvements upon
products sold to the Buyer.
14. Limitation of Action. Any action for breach of
Seller's warranty must be commenced within twelve (12) months from the time the
cause of action accrues unless the period for action shall be extended by
Seller in writing. In the interpretation of this limitation of action for
breach of Seller's warranty it is expressly agreed that there are no warranties
of future performance of the equipment that would extend the period of
limitation herein contained for bringing an action. It is expressly understood that any
effort by Buyer, Seller or agents to repair any product shall not extend the
twelve (12) month period of limitation unless Seller agrees in writing. The
warranty set forth in paragraph "10" applies to replacement parts as
well as equipment originally sold, and nothing except Seller's written consent
shall extend its obligation more than the period specified in paragraph
"9".
15. Installation Costs. All costs incident to
installation or erection or both of any product shall
be borne solely by Buyer.
16. Authority. All parties executing this agreement on
behalf of a corporation hereby affirm that they have the authority to bind
their respective corporations, as required, and that all necessary resolutions
and by-laws have been passed allowing such authority to be legally binding.
17. Interpretation. This Agreement and any
contract resulting from this Agreement is subject to
and shall be construed in accordance with the laws of the Province of Ontario,
Canada. The parties agree that this
Agreement and any contract resulting therefrom is
formed in the
18. Jurisdiction. The parties hereby
agree that any legal action or dispute arising from this Agreement or resulting
contract shall be commenced in the
19. Execution in Parts. This Agreement may be
executed in any number of counterparts, each of which shall be an original, but
all of which together shall constitute one instrument having full binding legal
effect.