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Entire Agreement:
a) The attached terms and conditions of sale (the “Sale Confirmation”), and the following general terms and conditions (the “Terms and Conditions”), together with any specifications attached to the Sale Confirmation or these Terms and Conditions, constitute the entire and final agreement between Buyer and Keirton Inc. (“Seller”) with regard to the subject sale. If any provision on the face of these Terms and Conditions is inconsistent with any of the terms and conditions set forth in the Sale Confirmation or any specifications, the provisions of these Terms and Conditions shall govern. No other agreement or understanding in any way purporting to modify the terms and conditions of this agreement shall be binding upon Seller unless otherwise agreed to by Seller in writing on or subsequent to the date of the Sale Confirmation. Seller hereby rejects any terms and conditions which may now or hereafter appear on Buyer’s order or other forms, and any acceptance of quotations, shipments, or other similar acts of Buyer shall be construed as Buyer’s acceptance of the Sale Confirmation, these Terms and Conditions, and any attached specifications.
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Delivery of Products and Services:
a) The Products, and Services, if applicable, will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of finished Products in Seller’s sole discretion. Seller shall not be liable for any delays, loss or damage in transit.
i) Delivery dates are approximate only, and are subject to the availability of the Products, receipt of payment, freight space and prompt receipt of all necessary documentation regarding the order. Seller shall not be responsible or liable for any loss or damage resulting from delay in delivery or non-delivery.
b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Products to Buyer at the location set forth in the Sale Confirmation (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Products. Buyer shall take delivery of the Products upon the Products being delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labour reasonably suited for receipt of the Products at the Delivery Point.
c) Seller may, in its sole discretion, without liability or penalty, make trans-shipments or partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfilment of Buyer’s purchase order.
d) If for any reason Buyer fails to accept delivery of any of the Products on the date fixed pursuant to the Products being delivered at the Delivery Point, or if Seller is unable to deliver the Products at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Products shall pass to Buyer; and (ii) the Products shall be deemed to have been delivered.
e) Seller shall use reasonable efforts to meet any performance dates to render Services specified in the Sales Confirmation, and any such dates shall be estimates only, and Seller shall not be liable for any delays.
With respect to the Services, Buyer shall (i) cooperate with Seller in all matters relating to the Services and provide such access to Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by Seller, for the purposes of performing the Services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of this agreement; (iii) provide such customer materials or information as Seller may reasonably request and Buyer considers reasonably necessary to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
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Title, Risk of Loss, and Security:
a) Title and risk of loss passes to Buyer at time of readiness to ship in accordance with INCOterms 2020 CIP unless otherwise noted on the quote, order confirmation or invoice.
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Buyer’s Acts or Omissions:
a) If Seller’s performance of its obligations under this agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants or employees, Seller shall not be deemed in breach of its obligations under this agreement or otherwise liable for any costs, charges or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
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Price:
a) Buyer shall purchase the Products, and Services, if applicable, from Seller at the quoted prices in the Sale Confirmation, plus any reasonable expenses to be incurred by Seller in connection with the performance of the Services.
b) All Prices are exclusive of all taxes, duties and shipping costs. Buyer shall be responsible for all such charges, costs and taxes; provided that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
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Payment:
a) Seller shall be paid for the Products, and Services, if applicable, in accordance with the terms as quoted in the Sale Confirmation. Unless otherwise quoted in the Sale Confirmation payment terms are a combination of cash in advance and cash on delivery. If deliveries are made in installments, each delivery shall be paid for without regard to other scheduled shipments. Seller’s prices do not include applicable sales, use, or other taxes, quotation fees and governmental impositions, however designated or levied on the sale, transportation or use of the Products, or Services, as applicable. Buyer shall pay such amounts in addition to Seller’s prices. In case of any default in payment hereunder or under any other contract with Seller, all amounts owing under this and other contracts by Buyer and its affiliates to Seller shall become due, notwithstanding the terms and conditions of this agreement. Buyer shall pay all costs of Seller’s collecting overdue accounts on a solicitor and client basis.
b) Buyer shall not withhold payment of any amounts due and payable by reason of any set- off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
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Warranty and Limitation of Liability:
a) Warranty – Seller warrants to Buyer only, that all Products sold by Seller hereunder are free, under normal use and maintenance, from defects in material and workmanship for the time period set out in the published warranty period set forth in the Sale Confirmation or otherwise published by Seller. Such time period shall commence on the date of shipment. If, within the applicable warranty period, Seller receives from Buyer written notice of any alleged defect in the Products, and when Seller acknowledges that such defect is due to faulty material or workmanship at the time of manufacture (Buyer having provided Seller a reasonable opportunity to perform any appropriate tests thereon), Seller shall, at its sole option and expense, either repair or replace the defective Products. Seller shall have the right to require Buyer to deliver the Products for such repair or replacement to a designated service center at Buyers expense. Seller will pay for return of repaired or replaced Product to Buyer.
Any Products that are repaired or replaced by Seller are warranted to be free from defects in material and workmanship for the time period originally applicable to the Products. No separate or extended warranty shall apply to repaired Products or to any part or parts thereof.
b) Exclusions – This warranty does not cover i) defects not reported within the applicable warranty period; ii) defects due to misapplication, misuse, abuse, improper installation or abnormal conditions of temperature, dirt or corrosive matter; iii) Products which have been in any way tampered with or altered by anyone other than an authorized representative of Seller; iv) Products damaged by neglect, accident, in shipment or otherwise, without fault of the Seller; v) expenses incurred by Buyer in an attempt to repair or rework the Products; vi) equipment manufactured by a person other than Seller. The specifications, descriptions and drawings contained in product catalogues issued or distributed by Seller may be of assistance in the selection of Products; however, Seller makes no warranty whatsoever as to the technical accuracy of same, as Seller may modify such specifications, descriptions and drawings and other technical data without notice.
c) Limitation of liability – THE FOREGOING IS THE SOLE WARRANTY OF THE SELLER IN CONNECTION WITH THE PRODUCTS, AND THE SERVICES, AND IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS (EXPRESS AND IMPLIED AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE), INCLUDING BUT NOT LIMITED TO WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. NO OTHER WARRANTIES OR CONDITIONS EXPRESSED OR IMPLIED ARE GIVEN. SELLER AND BUYER AGREE THAT FOR ANY BREACH OR DEFAULT BY SELLER IN CONNECTION WITH THIS AGREEMENT, EVEN FOR A BREACH OF CONDITION OR FUNDAMENTAL TERM OR FOR A FUNDAMENTAL BREACH OR BREACHES, BUYER’S EXCLUSIVE REMEDY SHALL BE THE REPAIR OR REPLACEMENT OF THE PRODUCT SUPPLIED BY SELLER. In no event shall Seller have any liability for Buyer’s loss of profits, loss of use of the Products, failure to realize expected savings, other commercial or economic loss of any kind whatsoever or for any indirect, special, incidental or consequential damages even if advised of the possibility thereof. Notwithstanding the foregoing, in no event shall Seller be liable for any liability whatsoever to Buyer or others, relating to or arising out of: a) fitness or otherwise for Buyer’s purposes of the Products; or b) the performance, nonperformance, failure, efficacy, length of life of or any defect in the whole or any part or parts of any product or products incorporating or otherwise using the Products or the Services. Buyer shall assume all such responsibility, risk and liability, whether or not the Products or the Services were selected or used in accordance with the Seller’s recommendations, assistance or instructions, and Buyer shall indemnify and save harmless Seller from and against all liability, loss, costs, damages, claims or expenses in respect thereof. Buyer’s use of the Products may require the Buyer to install safety features. Buyer is solely responsible for consulting with a qualified safety engineer and for furnishing and installing guards or other safety equipment needed to protect operating personnel. The foregoing limitation of liability is a condition of sale of the Products and the Services, if applicable, at the price or prices quoted and shall apply notwithstanding any defect in or failure of, including total failure of, any of the Products or the Services.
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Governing Law:
a) All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule (whether of the Province of British Columbia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of British Columbia. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this agreement.
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Confidential Information:
a) All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this agreement is confidential, solely for the use of performing this agreement and may not be disclosed or copied unless authorized in advance by Seller in writing, or where disclosure is required by applicable laws. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
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Force Majeure:
a) The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this agreement, for any failure or delay in fulfilling or performing any term of this agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
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Relationship of the Parties:
a) The relationship between the parties is that of independent contractors. Nothing contained in this agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
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No Third-Party Beneficiaries:
a) This agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
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Severability:
a) If any term or provision of this agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term of provision of this agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
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Survival:
a) Provisions of this agreement which by nature should apply beyond their terms will remain in force after any termination or expiration hereof.
