Diversity Technologies Corporation – Terms and Conditions of Sale
General Terms and Conditions of Sale
The following terms and conditions of sale shall apply to any sale of goods and services by Diversity Technologies Corporation (hereinafter called “Di‑Corp”). Purchaser shall be deemed to have full knowledge of the terms and conditions herein and such terms and conditions shall be binding if the goods and services referred to herein are delivered to and accepted by Purchaser.
1. GENERAL
In the event of any conflict or inconsistency between the terms and conditions of sale herein and the terms and conditions contained in Purchaser’s order or in any other form issued by Purchaser, whether or not any such form has been acknowledged or accepted by Di‑Corp, the terms and conditions herein shall prevail. No waiver, alteration or modification of these terms and conditions shall be binding upon Di‑Corp unless made in writing and signed by a duly authorized representative of Di‑Corp.
2. QUOTATIONS
Unless otherwise stated, Di-Corp’s quotation shall be null and void unless accepted by Purchaser within thirty (30) days from the date of quotation.
3. PRICES / COST OF TRANSPORTATION
All quoted prices are based on the current exchange rates, tariffs and costs of manufacture. Unless otherwise stated in the quotation, quoted prices are subject to change by Di-Corp with or without notice until Purchaser’s acceptance. Prices are subject to correction for error. Unless otherwise stated, all prices are EXW factory and include domestic packing. Customary methods of transportation shall be selected by Di-Corp and such transportation will be at Purchaser’s expense. Special methods of transportation will be used upon Purchaser’s request and at Purchaser’s additional expense provided reasonable notice of Purchaser’s transportation requirements are given by Purchaser to Di-Corp prior to shipment.
4. TAXES
Prices do not include Goods & Services Tax, Provincial or Municipal sales, use, value-added or similar tax. Accordingly, in addition to the price specified herein, the amount of any present or future sales, use, value-added or similar tax applicable to the sale of the goods hereunder to or the use of such goods by Purchaser shall be paid by Purchaser to the entire exoneration of Di-Corp.
5. DELIVERY
Delivery schedules are approximate and are estimates only based on prevailing conditions applicable respectively at the time of Di-Corp’s quotation and Di-Corp’s acceptance of Purchaser’s order. Delivery shall also depend on the prompt receipt by Di-Corp of the necessary information to allow maintenance of the manufacturer’s engineering and manufacturing schedules. Di-Corp may at any time extend delivery schedules or may, at its option, cancel Purchaser’s order in full or in part without liability other than to return any deposit or prepayment which is unearned by reason of the cancellation.
6. FORCE MAJEURE
Di-Corp shall not be responsible or liable for any loss or damage incurred by Purchaser herein or generally for, or arising out of, any deficiency or failure to perform resulting from causes beyond the reasonable control of Di-Corp including, but without limitation, acts of God, war, invasion, insurrection, riot, the order of any civil or military authority, fire, flood, weather, acts of the elements, delays in transportation, unavailability of equipment or materials, breakdown, sabotage, lock-outs, strikes or labour disputes, faulty castings or forgings, or the failure of Di-Corp’s suppliers to meet their delivery promises. The acceptance of delivery of the equipment by Purchaser shall constitute a waiver of all claims for loss or damage due to any delay whatsoever.
7. SHIPMENT/DAMAGES OR SHORTAGES IN TRANSPORT/RISK
The carrier, whether chosen by Di-Corp or Purchaser, shall be deemed to be the agent of Purchaser and not of Di-Corp. Except for obligations stated under “Warranty” herein, Di-Corp’s responsibility for goods ceases upon delivery to the Carrier at which point all risk shall pass to the buyer notwithstanding that title may not yet have passed. In the event of loss or damage during shipment, Purchaser’s claim shall be against the carrier only. Di-Corp will, however, give Purchaser reasonable assistance to secure adjustment of Purchaser’s claim against the carrier provided immediate notice of such claim is given by Purchaser to Di-Corp. Claims for shortages must be made in writing within ten (10) days after receipt of goods by Purchaser. If Di-Corp does not receive written notification of such shortages within such ten (10) days, it shall be conclusively presumed that the goods were delivered in their entirety. Unless agreed upon otherwise in writing, Di-Corp reserves the right to make partial shipments and to submit invoices for partial shipments.
8. TITLE
Title to the goods or any part thereof shall not pass from Di-Corp to Purchaser until all payments due hereunder have been duly received in cash, except as otherwise expressly stipulated herein, and a purchase money security interest in such goods shall be retained by Di-Corp . Cheques are not deemed to be payment until actually received. All wires and other electronic payments are at the risk of Purchaser and shall not be deemed to have been received by Di-Corp until receipt is acknowledged by Di-Corp’s bank. The goods shall be and remain personal or moveable property, notwithstanding their mode of attachment to realty or other property. If default is made in any of the payments herein, Purchaser agrees that Di-Corp may retain all payments which have been made on account of the purchase price as liquidated damages, and Di-Corp shall be free to enter the premises where the goods may be located and remove them as Di-Corp’s property, notwithstanding any resulting damage to the Purchaser’s property as a result of any such affixation and removal (and Di-Corp is hereby released from any claim for the same) without prejudice to Di-Corp’s right to recover any further amount owing or any further expenses or damages Di-Corp may suffer by reason of such nonpayment. As further security for the payment of the purchase price hereunder the Purchaser grants to Di-Corp a security interest in any property, real or personal, to which such goods are attached or affixed, regardless of the degree of such attachment or affixation.
9. LIABILITY
Di-Corp shall not be liable for and shall be fully indemnified held harmless by Purchaser, from and against any damage, losses or claims of whatever kind, contractual or delictual, consequential or incidental, direct or indirect, arising out of, in connection with or resulting from the sale governed hereby or the goods, including, but without limitation, the manufacture, repair, handling, installation, possession, use, operation or dismantling of the goods and any and all claims, actions, suits, and proceedings which may be instituted in respect to the foregoing. Without limitation to the foregoing, Di-Corp’s liability (whether in contract, tort, or any other basis whatsoever) arising out of any defect in the goods supplied or services provided by Di-Corp shall be limited to the price for the goods sold or services provided. Without limiting the generality of the foregoing DI-CORP SHALL HAVE NO LIABILITY TOWARDS PURCHASER FOR LOSS OF PRODUCTION, LOSS OF PROFIT, LOSS OF USE, LOSS OF CONTRACTS, COST OF CAPITAL, INTEREST, COST OF DELAY, BUSINESS INTERRUPTION, OR FOR ANY OTHER SPECIAL, CONSEQUENTIAL OR INDIRECT LOSSES WHETHER ARISING FROM FAULT, BREACH OF CONTRACT, TORT (INCLUDING CONCURRENT OR SOLE AND EXCLUSIVE NEGLIGENCE), INDEMNITY, STRICT LIABILITY OR OTHERWISE.
10. WARRANTY
Goods and services sold hereunder are covered by a warranty against defects in material and workmanship provided the goods and services are subjected to normal use and service. The applicable warranty period is the lesser of twelve (12) months from the date of delivery of the goods or performance of the services and any other warranty period otherwise stipulated in writing by Di-Corp in respect of this sale. For greater certainty, such warranty shall be deemed to have expired and ceased to be of any contractual effect unless written notice of such defects, and reasonable detail thereof, is provided to Di-Corp prior to such expiry. For goods and components not manufactured by Di-Corp, the original manufacturer’s warranty shall apply to the extent assignable by Di-Corp and, for greater certainty, are not the warranty of Di-Corp itself. Without limitation to paragraph 9, the obligation under this warranty is limited to the repair or replacement, at Di-Corp’s option, of defective goods and services EXW point of shipment provided that prompt notice of any defect is given by Purchaser to Di-Corp in writing within the applicable warranty period and that upon the Purchaser’s return of the defective parts to Di-Corp or, if designated by Di-Corp, to the location where the works are made, properly packed and with transportation charges prepaid by Purchaser, an inspection thereof shall reveal to Di-Corp’s satisfaction that Purchaser’s claim is valid under the terms of this warranty. Purchaser shall assume all responsibility and expense for dismantling, removal, re-installation and freight in connection with the foregoing. The same obligations and conditions extend to replacement parts furnished by Di-Corp hereunder. Di-Corp does not assume liability for installation, labour or consequential damages. Di-Corp makes no warranty other than the one set forth herein. All other warranties, legal, expressed or implied, including but not limited to any expressed or implied warranty of merchantability, of fitness for the intended use thereof or against infringement are hereby expressly excluded and, further but without limitation, the choice of goods and services and the types and specifications thereof and the suitability thereof for Purchaser’s purposes are the sole responsibility of Purchaser and Di-Corp makes no binding representations or warranties concerning the same . The applicable warranty ceases to be effective if the goods are altered or repaired other than by persons authorized or approved by Di-Corp to perform such work. Repairs or replacement deliveries do not interrupt or prolong the term of the warranty. The warranty ceases to be effective if Purchaser fails to operate and use the goods sold hereunder in a safe and reasonable manner and in accordance with any written instructions from the manufacturers. Any advice provided to Purchaser by Di-Corp in connection with the goods or services provided (except to the extent expressly agreed in writing as being part of any agreed services provided for remuneration) is entirely gratuitous and without any resulting liability or obligation for errors or insufficiencies or other cause whatsoever, or upon any grounds whatsoever, including tort. Except to the extent, if any, expressly agreed to in writing by Di-Corp, Di-Corp is not obliged to provide ongoing service or advice concerning goods sold or services provided. Where Di-Corp does do so, it may charge reasonable rates for the same in reasonable amounts as established in Di-Corp’s discretion. Purchaser agrees to use goods supplied by Di-Corp safely and in accordance with all instructions and precautions provided by Di-Corp or the manufacturer and agrees to indemnify and save harmless Di-Corp from and against any third party claims made as against Di-Corp by reason of any loss or injury to person or property whatsoever in connection with or arising from the said goods or the use thereof. In the event of such loss or injury Purchaser shall provide a prompt and accurate report of the same in writing to Di-Corp in such detail as Di-Corp shall require and shall waive any and all privilege in respect of the same. All goods and services supplied by Di-Corp shall be conclusively deemed in full compliance with all warranties, specifications, quantities and requirements and free of all defects unless, and only to the extent that, within 60 days of such supply, Purchaser serves upon Di-Corp a notice in writing stating that there is non-compliance and specifying the exact details thereof
11. INSTALLATION
Unless otherwise expressly stipulated, the goods shall be installed and used by and at the risk and expense of Purchaser. In the event that Di-Corp is requested to supervise such installation or use, Di-Corp’s responsibility shall be limited to exercising that degree of skill customary in the trade in supervising installations of the same type. Purchaser shall remain responsible for all other aspects of the work including compliance with the local regulations.
12. RETURNED GOODS
No goods may be returned to Di-Corp without Di-Corp’s prior written permission and only current / non-obsolete and clean goods of good quality that were originally supplied by Di-Corp will be accepted. Di-Corp reserves the right to decline all returns or to accept them subject to a fifteen percent (15%) handling/restocking charge. Even after Di-Corp has authorized the return of goods for credit, Di-Corp reserves the right to adjust the amount of any credit given to Purchaser on return of the goods based on the conditions of the goods on arrival in Di-Corp’s warehouse. Credit for returned goods will be issued to Purchaser only where such goods are returned by Purchaser and not by any subsequent owner of the goods. Goods will be considered for return only if they are in their original condition and packaging. All shipping charges for returned goods shall be paid for by Purchaser (and if unpaid, may be paid out of the refund due to the Purchaser).
13. TERMS OF PAYMENT
Unless otherwise stated, invoices are payable, without deduction or set-off, within thirty (30) days of invoice date. Should payment not be made to Di-Corp when due, Di-Corp reserves the right, until the price has been fully paid in cash, to charge Purchaser with interest on such overdue payments at the rate of eighteen percent (18%) per annum, calculated from the date due to the date of payment and both before and after judgment. The charging of such interest shall not be construed as obligating Di-Corp to grant any extension of time in the terms of payment. All invoices, statements and other memoranda addressed to Purchaser by Di-Corp concerning the statement of accounts between Di-Corp and Purchaser are conclusive as against Purchaser unless within 60 days of the said memorandum having been mailed by Di-Corp, Purchaser serves upon Di-Corp a notice in writing disputing some aspect of the said memorandum, specifying which aspect is in dispute (in which case all other aspects shall be deemed admitted by Purchaser) and stipulating what Purchaser alleges is a correct version of the aspect in dispute. All monies paid by Purchaser to Di-Corp may (regardless of any contrary direction given by Purchaser) be applied by Di-Corp to such outstanding invoices and accounts and as to principal or interest as Di-Corp deems fit.
14. CHANGES AND CANCELLATION
Orders accepted by Di-Corp are not subject to changes or cancellation by Purchaser, except with Di-Corp’s written consent. In such cases where Di-Corp authorizes changes or cancellation, Di-Corp reserves the right to charge Purchaser with reasonable costs based upon expenses already incurred and commitments made by Di-Corp, including, without limitation, any labour done, material purchased and also including Supplier’s usual overhead and reasonable profit and cancellation charges from Di-Corp’s suppliers.
15. CREDIT
Purchaser agrees to promptly notify Di-Corp of any material change in Purchaser’s financial condition or credit worthiness and not to at any time order goods or services from Di-Corp in circumstances when there is any doubt about Purchaser’s ability to pay. Upon default by Purchaser or in the event that Di-Corp at any time determines that Purchaser’s credit position is in any manner insecure, inadequate or in jeopardy, Di-Corp may, without limiting its other remedies (and notwithstanding any existing contracts or commitments to Purchaser and even if Di-Corp has commenced delivery or performance): a) deem all amounts owing, or to become owing, by Purchaser to be immediately due and payable, b) take possession of any goods supplied or otherwise enforce its security hereunder, c) refuse, stop, cease or suspend further sales, deliveries or services to Purchaser, including goods in transit and/or d) as a condition to completing or commencing such sales, deliveries or services, impose prepayments, security, or other terms, all as Di-Corp deems fit. Purchaser hereby irrevocably (a) authorizes and directs any bank, supplier, governmental authority, credit agency, collection agency or other person (“Interested Persons”) to disclose to Di-Corp any information whatsoever concerning Purchaser and its affiliates, including financial, personal, business and credit information, even if given or obtained in confidence (“Customer Information”) that Di-Corp may from time to time request and (b) authorizes Di-Corp to disclose any Customer Information to any Interested Person for any reason and, for the purposes of any applicable statute pertaining to privacy of information, this clause shall constitute full and sufficient consent. Purchaser agrees to fully indemnify and save harmless Di-Corp from and against any and all costs and expenses (including legal expenses on a solicitor and his own client basis) incurred by Di-Corp in the collection (including execution) of any monies due to Di-Corp or in respect of any other loss suffered or incurred as a result of Purchaser’s breach or noncompliance with the terms hereof.
15. THE AGREEMENT
An acceptance and official confirmation of Purchaser’s order by Di-Corp shall constitute the complete agreement, subject to the terms and conditions of sale herein set forth, and shall supersede all previous quotations, orders or agreements. The law of the Province of Alberta shall govern the validity, interpretation and enforcement of these terms and conditions of sale and of any contract of which these terms and conditions are a part. This Agreement shall be interpreted in accordance with its plain and ordinary meaning having regard to the purposes hereof and any rule of interpretation that would construe any ambiguity against the party drafting it shall not be applied. This Agreement shall be governed by the domestic laws of the Province of Alberta (the United Nations Convention on the International Sale of Goods not to apply) and Purchaser hereby attorns to the exclusive jurisdiction of the Courts of the Province of Alberta. The contra proferentem rule shall not to apply to the interpretation of this Agreement. This Agreement may be executed in two or more counterparts, all of which shall constitute one and the same agreement. No relaxation, forbearance, delay or indulgence by Di-Corp in enforcing any of the terms and conditions of this Agreement or the granting of time by Di-Corp to Purchaser shall prejudice, affect or restrict the rights and powers of Di-Corp hereunder nor shall any waiver of any breach hereof operate as a waiver of any subsequent or any continuing breach hereof. This Agreement may only be amended by further agreement in writing executed by both parties.
16. FORCE MAJEURE
Neither party shall be responsible or accountable for total or partial failure to perform any obligation hereunder if such failure shall arise from any cause or causes beyond the reasonable control of such Party including, without limiting the generality of the foregoing, the following: acts of God; expropriation or confiscation of land or personal property; compliance with any applicable law, request, recommendation or requirement of any governmental authority, body or agency; war; riot; rebellion; sabotage; flood; fire; unusual weather that could not reasonably have been anticipated; unpredictable malfunction of transportation Product; road closure; or labour dispute (“Force Majeure”) provided however that in no event shall lack of funds or financial resources be considered Force Majeure. The provisions of this Agreement shall not be construed as requiring either party hereto to accede to the demands of labour and labour unions that it considers unreasonable.
The performance of obligations under this Agreement shall be suspended during any period of force majeure and shall be resumed as soon as practicable after Force Majeure has ceased. If any event of Force Majeure (i) lasts for more than forty-five (45) days; or (iii) results in a total frustration of the Agreement, either party may, by written notice, terminate all obligations and liabilities imposed on it by this Agreement except for the obligation to pay the reasonable costs and expenses incurred by Di-Corp in the course of its performance of its obligations under this Agreement prior to such notice of cancellation.
