These terms and conditions shall be deemed to be an integral part of the agreement (“Agreement”) arising from the acceptance by Seller of any purchase order of Buyer for product (“Product”) or services (“Services”) described in the Seller’s quotation, acknowledgement and/or invoice and shall conclusively be deemed (i) to constitute the entire agreement between Seller and Buyer with respect to the subject matter hereof, and (ii) to supersede all prior or concurrent agreements, arrangements, understandings or other discussions, written or oral, between Buyer and Seller with respect thereto, notwithstanding (i) that Buyer does not accept or ratify in writing these terms and conditions, (ii) any prior course of dealing between Buyer and Seller to the contrary, and (iii) any terms and conditions of purchase set out in any purchase order or other communication from Buyer to Seller, and whether these terms and conditions were received by Buyer before or after any communication to Seller containing Buyer’s terms and conditions of purchase.
All taxes, fees, levies, assessments or other charges imposed by any local, provincial or federal government or other relevant authority upon the production, sale, use, import, export, ownership, provision or shipment of Product or Services shall be for the account of Buyer.
Title to Product or Services shall remain in Seller until the product has left the Seller’s facility or its appointed facility such as a 3rd party warehouse. If Buyer fails to pay any mount due under the Agreement (whether by acceleration or otherwise) or otherwise fails to perform any obligation of Buyer hereunder, Buyer shall be deemed to be in default and Seller shall have all of the rights and remedies available to if under applicable law.
4. RISK OF LOSS, INDEMNITY, CLAIMS:
Buyer shall bear all risks of loss of or damage to Product or Services from the time Product is delivered into the custody of a carrier for transportation. Buyer is urged to examine all deliveries carefully immediately upon delivery and before signing the receipt. If any Product or Services is visibly damaged or if there are any shortages of Product delivered, Buyer must have written confirmation of the damage or shortages noted on the freight bill or other receipt by the agent of the carrier. Signing a receipt without notation of damage to, or shortages of, Product shall constitute conclusive evidence of receipt of Product in satisfactory condition and in the quantities specified in the freight bill or other receipt. Any claim of damage in transit or for shortages should be made promptly by Buyer against the carrier. If any Product is lost, disappears or is damaged or destroyed, in whole or in part, for any reason while in the possession of Buyer or any carrier, and before payment in full therefore, and Seller suffers any loss by virtue thereof, Buyer shall indemnify and save harmless Seller from such loss. If any such loss is covered by insurance to which Buyer is a beneficiary and/or by recourse by Buyer against any other party, then any such claim and any proceeds payable with respect thereto shall automatically vest in Seller.
Seller may make partial deliveries and submit invoices there for. Buyer shall make an examination and test of any Product delivered or shall review and use any Services provided immediately upon receipt at Buyer’s plant and failure of Buyer to give written notice of any claim to Seller within five (5) business days after the receipt of such Product or provision of such Service shall be deemed to constitute an unqualified acceptance thereof. Subject to Section 8, Seller will make reasonable commercial efforts to meet delivery dates quoted or acknowledged. However, Seller will not be liable for any failure to meet such dates. Delivery is EXW (Ex Works), Incoterms 2010.
6. WARRANTIES, LIMITATIONS AND EXCLUSIONS OF LIABILITY:
The duration of the warranty period will be determined when a Contract has been agreed to between the Seller and the Buyer which can include the standard warranty period and options for extended warranties. The warranty provisions of the Purchase Order transferred to the Buyer under this Warranty Registration are:
a. Seller warrants that the Product listed in this Warranty Registration shall be free from defects in material and workmanship via the issuance of a Certificate of Compliance or other documentation..
b. In full satisfaction of any claim under this warranty, Seller shall, if satisfied after its inspection, tests or other assessment that the Product is defective, either (i) repair any defective part or parts, or (ii) make available to Buyer such repaired or replacement part or parts or such service as is required to in Seller’s opinion correct the defect. Service shall be performed during normal working hours during times mutually agreed upon in advance by Seller and Buyer. Seller and Buyer shall mutually agree upon the conduct of any tests required to determine whether a Product is defective in advance of conducting such tests.
c. This warranty shall be void if:
i. the Products have been damaged in shipment or improperly stored, installed or maintained or otherwise have not been used in conformance with Seller’s operating instructions or have been altered or repaired without Seller’s prior written consent;
ii. Buyer fails to notify Seller promptly in writing of any claim under this warranty within five (5) business days or
iii. Buyer fails to make any Product subject of a claim promptly available for inspection and correction.
d. This warranty does not apply to:
i. Damage, malfunction, or degradation of electrical output caused, directly or indirectly, by any repair or replacement using a part or service not provided or authorized in writing by the Seller;
ii. Damage, malfunction, or degradation of electrical output resulting, directly or indirectly, from Buyer or third party abuse, accident, alteration, improper use, negligence or vandalism, or operating beyond the Product’s rating, fire, flood, direct lightning strike to the Product or other acts of God that could damage the product;
iii. Damage caused, directly or indirectly, by other events outside of the control of Seller; or
iv. Any third party components that have been authorized by the Buyer and incorporated into the Product.
e. This warranty is conditional upon the correct installation & operation of the Seller’s product or services; utilization of the Seller’s remote data collection system if applicable.
f. THIS WARRANTY CONSTITUTES BUYER’S SOLE AND EXCLUSIVE REMEDY FOR CLAIMS AGAINST SELLER IN RESPECT OF DEFECTIVE OR NON-CONFORMING PRODUCTS HEREUNDER AND CLAIMS FOR INFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS OF ANY KIND AGAINST SELLER AND IS IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS, GUARANTEES OR REPRESENTATIONS FROM SELLER RELATING TO THE PRODUCTS HEREUNDER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, IN CONTRACT, TORT OR OTHERWISE, INCLUDING WITHOUT RESTRICTION ANY WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR PURPOSE, AND ANY SUCH WARRANTY, CONDITION, GUARANTEE OR REPRESENTATION IS HEREBY EXCLUDED.
g. SELLER SHALL NOT BE HELD LIABLE FOR ANY CONSEQUENTIAL DAMAGES OR LOSS OF USE ASSOCIATED WITH WARRANTY CLAIMS FOR SAID PRODUCT. FOR GREATER CERTAINTY, IN NO EVENT WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING WITHOUT RESTRICTION NEGLIGENCE) OR OTHERWISE, SHALL SELLER BE LIABLE FOR ANY LOSS OF PROFITS OR FOR ANY SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, LOSSES, INJURY, COSTS OR EXPENSE OF ANY NATURE RELATING TO ANY PRODUCT THAT IS THE SUBJECT OF THIS WARRANTY REGISTRATION OR RELATED SERVICES.
h. SELLER’S TOTAL LIABILITY FOR ANY AND ALL WARRANTY CLAIMS AND COSTS SHALL NOT EXCEED THE PRICE RECEIVED FOR SUCH PRODUCT FROM PURCHASER.
Depending on the accepted proposal between the Buyer and the Seller, payment terms are normally milestones which are in the proposal and will be specified on the Buyer’s Purchase Order. Standard payment terms in Net 30 days. Unless a Purchase Oder specifically states otherwise, all payments shall be made in U.S. dollars.
8. FORCE MAJEURE:
Without limiting any other provision herein, Seller will not be liable for any delay (i) in shipment or failure to ship Product or for any damage suffered by reason thereof or (ii) in the provision of, or failure to provide, Services or for any damage suffered by reason thereof, whether such delay or failure, directly or indirectly, is due to accident (in manufacture or otherwise), fire, flood or other acts of God, labor stoppages or difficulties, inadequate transportation facilities, shortage of materials or supplies, delay or default on the part of its suppliers, government action or any other casualty or cause beyond the reasonable control of Seller, which Seller in its discretion declares to be force majeure resulting in such delay or failure. In such event, Seller, at its option, may cancel the Agreement or delay performance thereunder for any period reasonably necessary due to the foregoing, during which time the Agreement shall remain in full force and effect. Seller shall have the further right to then allocate its available resources, materials and products among its customers and for its use in such manner as Seller may consider fair and equitable.
9. TERMINATION OPTION:
Seller shall have the option to terminate the Agreement forthwith upon written notice if Buyer’s account with Seller is in arrears or the Buyer has been in violation of other terms and conditions.
10. DISPOSAL OF PRODUCT AND/OR COMPONENTS:
The Buyer will be using the product in the application which they have identified to the Seller. If the Buyer later decides to dispose of the battery cell/s then the Buyer must follow all local and federal laws under their jurisdiction attributed to disposal of lithium ion batteries.
11. DEALING WITH SELLER’S SUB CONTRACTORS:
If the Seller and/or its subsidiaries provides data on its subcontractors or third party suppliers to the Buyer and if the Buyer wants to contact those subcontractors or third party suppliers, then the Buyer must contact the Seller first for approval.
12. END USE DECLARATION:
The Seller declares that the end use is as stated on their orders to the Buyer. The Seller declares that the final product and/or its components including both hardware and software is not being used in NBC (Nuclear, Biological, and Chemical) warfare applications.
13. RESERVATION CLAUSE:
The Seller shall not be obligated to fulfill the Buyer’s Purchase Order if such fulfillment is prevented by any impediments arising out of national or international foreign trade or customs requirements or any embargoes or other sanctions, unless the Seller was or should have been aware of these obstacles when the Purchase Order was concluded.
14. INTEREST, ACCELERATION OF INDEBTEDNESS AND SETOFF:
Interest on all amounts due under the Agreement (whether by acceleration or otherwise) shall accrue from the due date at the lesser of 18% per annum (1 1/2% per month) and the highest rate of interest permitted by law until all amounts payable to Seller are paid in full. If Buyer is in arrears with respect to any other dealings or transactions with Seller, then, notwithstanding anything to the contrary, any indebtedness hereunder shall automatically become due and payable in full without any notice from Seller to that effect. Seller shall have the right to set off against any amounts which may at any time be payable by it to Buyer any amount due from Buyer to Seller under the Agreement.
In the event that Buyer becomes insolvent or unable to pay its debts as they become due or in the event of voluntary or involuntary bankruptcy proceedings by or against Buyer or the appointment of a receiver or assignee of any of Buyer’s property for the benefit of any one or more of Buyer’s creditors, Seller may elect to cancel the Agreement and any unfulfilled obligations of Seller hereunder.
No claim or right arising out of a breach of the Agreement can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is in writing signed by the aggrieved party. Waiver by either Seller or Buyer of a breach of the other of any provision of the Agreement shall not be deemed a waiver of future compliance therewith, and such provision shall remain in full force and effect.
The Agreement may be modified only by written instrument signed by both Buyer and Seller.
Any dispute arising out of, or in connection with, the Agreement shall be submitted to, and finally resolved by, arbitration in the Province in which the office from which the order is invoiced is located and shall be conducted pursuant to the applicable arbitration legislation of that Province and the rules thereunder.
19. APPLICABLE LAW:
The Agreement shall be deemed to be made in, and to be governed by and construed in accordance with the laws of, the Province of Ontario, Canada and the courts of that Province shall have exclusive jurisdiction in the event of any disputes hereunder. Buyer hereby agrees and submits to the jurisdiction of the Province of Ontario for the purposes of enforcement of rights and remedies arising under this agreement. The parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
20. SEVERABILITY OF PROVISIONS:
In case any one or more of these terms and conditions should be found to be invalid, illegal or unenforceable in any respect, it or they shall be severed from the Agreement and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
The use of headings herein is for convenience of reference only and does not affect the interpretation hereof.
The parties hereto acknowledge that they have expressly required that this document and all deeds, documents or notices relating thereto to be drafted in the English language.
23. BUYER’s WEBSITE, SOCIAL MEDIA & PUBLICATIONS:
If the Buyer wants to put any information about the Seller on their website, publication or other Social Media then the Buyer must obtain written approval from the Seller.