AQUABIOTECH Inc., legal entity, being a company was incorporated under the Canada Business Corporations Act and having its head office at 936, route 141 Nord, Coaticook, QC, J1A 2S5, Canada.
CUSTOMER ORDER ACCEPTANCE
All orders are subject to acceptance by Aquabiotech Inc. as the case may be, (each, “AQBT” or “Seller”) and are not accepted by or binding upon AQBT unless a signed notice of such acceptance is forwarded to the Buyer in writing or upon fulfillment of the order by AQBT. The terms and conditions of sale are only those stated herein, which with the information contained in the face of the quote or acknowledgment shall constitute the complete agreement between the parties and may not be altered or modified except in writing duly executed by each party. The parties agree there are no agreements, representations or warranties between the parties, oral or written, with respect to the products sold hereunder (including any made or implied from past dealings) except as expressed herein. No terms and conditions stated in or attached to Buyer’s communications to AQBT, including but not limited to Buyer’s purchase orders the terms of which are hereby rejected, are applicable to these terms and conditions in any way and in no event shall such Buyer’s or any other terms and conditions be considered valid exceptions to the provisions of these terms and conditions. Trade custom, trade usage, and past performance are superseded by these terms and conditions and shall not be used to interpret these terms and conditions.
GOVERNING LAW AND JURISDICTION
This Agreement shall be interpreted and governed in accordance with the Laws of the Province of Quebec in general and with the Laws of the Parliament of Canada with respect to intellectual property, and any dispute or claim arising out of this Agreement shall be referred to and resolved by the competent courts of the judicial district of St-François (Sherbrooke), Quebec, Canada, (including the Supreme Court of Canada) which shall have exclusive jurisdiction in the event of any dispute.
However, before initiating any lawsuit AQBT agree to primarily submit all controversy to negotiation, mediation and to act honestly and in good faith.
Therefore, if the PARTIES do not resolve all or some dispute or claim, one or other of the PARTIES may send a written notice to the other in which it seeks to negotiate. If, following 30 days of negotiation, dispute remains for some or all issues, the PARTIES must seek a mediator. The mediator must be chosen by the PARTIES jointly. The PARTIES undertake to participate in at least one mediation meeting, delegating a person in authority of decision.
If no agreement is reached within 30 days following the decision to seek a mediator, or within 60 days of the appointment of the mediator, the dispute shall be settled definitively by the courts, according to the first paragraph.
LIMITATION OF LIABILITY
AQBT SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF AQBT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WITH RESPECT TO THIS AGREEMENT OR ANY OTHER MATTER RELATING TO THE PRODUCTS OR SERVICES.
IN NO EVENT SHALL AQBT’ MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL FEES PAID BY BUYER TO AQBT WITH RESPECT TO THE SPECIFIC QUOTE, ORDER OR AGREEMENT TO WHICH THESE TERMS AND CONDITIONS APPLY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE OR EXTEND THE LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO BUYER.
AQBT warrants that upon completion of the services or at the time of delivery, as the case may be, and for a period of twelve (12) months thereafter: (i) professional services, if any, will be performed in a good and workmanlike manner in accordance with generally acceptable industry standards, and (ii) products specifically manufactured by AQBT, except for filters, chemicals and consumables (which shall not be warranted) shall be free from all material defects in materials and workmanship. With respect to the professional services warranty, Buyer’s sole and exclusive remedy for AQBT’ breach of the warranty shall be for AQBT to re-perform the services at AQBT’ sole cost and expense. With respect to the AQBT manufactured product warranty, if the AQBT manufactured product shall prove to be defective in material or workmanship under normal intended usage and maintenance during the warranty period, upon examination by AQBT or its authorized representative, then AQBT shall repair or replace, at its sole option, such defective products at its own expense; provided, however, that the Purchaser shall be required to ship each such defective product, freight prepaid, to AQBT’ designated facility. The warranty on products and/or components not manufactured by AQBT is limited to the warranty, if any, provided by the original manufacturer of said product or component which can be passed onto Buyer. AQBT DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
This Warranty does not extend to any products that have been subjected to:
1. Damage caused by careless handling, improper repackaging, or shipping.
2. Damage due to misapplication, misuse, abuse or failure to properly operate the product.
3. Damage caused by improper installation or storage.
4. Damage due to unauthorized product modifications or repairs.
5. Damage caused by negligence, or failure to properly maintain products.
6. Accidental damage, fire, acts of God, or other circumstances outside the control of AQBT.
In the event Buyer desires to have Seller perform a non-warranty repair of equipment sold by Seller, Buyer shall contact Seller’s customer service representative at 888 933 0303. If Seller is capable of performing such non-warranty repair of the equipment and Buyer decides to move forward with having Seller perform such repair, Seller will generate a return number which Buyer shall reference in its shipment to Seller of the equipment for evaluation by Seller. Buyer is solely responsible for any and all costs and expenses, customs fees, duties and taxes associated with shipping the equipment for evaluation. Buyer will be charged an up-front evaluation fee in order for Seller to assess the extent and ability of Seller to perform the necessary repairs. The evaluation fee must be paid in advance and will be credited toward the repair fee if Buyer elects to have Seller perform the repair. If Seller is capable of performing the repairs, then Seller shall provide Buyer with a quote for the cost of the repairs. Upon Buyer’s consent to move forward based on the quote, Seller shall make the repairs outlined in the quote and return the equipment to Buyer in accordance with Seller’s Shipping Policy. If Seller does not wish to move forward with the repairs or Seller cannot otherwise perform the repairs, Buyer shall arrange for the pick-up of the equipment at Seller’s facility at Buyer’s sole cost and expense. Any equipment sent in for a repair evaluation and which is left for more than ninety (90) days after notice is given that either (i) Buyer does not wish to move forward with the repairs or (ii) Seller is unable to perform the repairs, shall be considered abandoned. Certain equipment may be subject to additional documentation or evaluation criteria at Seller’s sole discretion.
In the event a provision of these Terms and Conditions is held to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be affected.
Shipping dates are estimates only and are not guaranteed. Seller will use every effort to make shipments as scheduled and may make partial shipments. Seller shall not be liable for any loss or damage ensuing from late delivery. – Prices quoted, unless otherwise agreed to by AQBT, are EXW-Aquabiotech Coaticook factory. In the event of shipping damage, AQBT must be notified, in writing, within three (3) business days of shipment receipt. Buyer must hold all products and packing materials intact until further disposition is provided by AQBT in writing.
The customer is responsible for offloading of equipment and transport to final destination. Special freight requirements for unloading such as lift gate, pallet jack, and special truck size must be specified upon placement of the order and will be added to freight costs previously quoted unless these special requirements are known at the time of quotation.
TITLE AND RISK
On domestic sales, transfer of both title and risk of loss shall occur upon pickup from Seller’s site. On international sales, transfer of both title and risk of loss shall occur upon entry into international waters, international airspace, or the crossing of an international border with the sole exception of banked transactions (L/C, DM, DAP), in which case the transfer of title occurs upon exchange of documents at the bank window, and the transfer of risk of loss occurs upon entry into international water, international airspace, or the crossing of an international border.
Within three (3) business days after receipt of shipment of the product, Buyer shall inspect the shipment for obvious damage to or violation of the shipping container. Buyer shall also confirm that the type and quantity of the products received are consistent with the type and quantity specified on the related shipping documents and order. Buyer shall promptly notify Seller of any discrepancies in accordance with the terms hereof. If a notice of discrepancies is not received by AQBT within three (3) days after receipt of the shipment by Buyer, the shipment shall be deemed to have been completely and correctly fulfilled, and all claims by Buyer shall be deemed waived and released, except for any Product defect that a visual inspection would not disclose.
No products may be returned without prior written approval of Seller. Orders placed with and accepted by Seller may not be cancelled except upon Seller’s written consent prior to shipment and Buyer’s acceptance of Seller’s cancellation charges which shall protect Seller against all costs and losses, but not higher than the price quoted. Seller reserves the right to cancel any sale hereunder without liability to Buyer (except for refund of monies already paid) if the manufacture or sale of the products is or becomes technically or economically impractical. A cancellation fee equal to thirty percent (30%) of the stipulated price for non-stocked or custom products which have already been manufactured will be charged for any cancellations of non-stocked or custom products that have not been shipped to the Buyer. “Non-stocked or custom products” are defined as goods that are made to order.
PAYMENT; OVERDUE INVOICES
All payment terms are subject to AQBT’ Credit Department’s approval. Unless otherwise agreed to by the parties, payment terms are 100% upon order
AQBT RESERVES THE RIGHT TO ADD, AND PURCHASER AGREES TO PAY, INTEREST AT THE RATE OF 18% PER ANNUM OR THE HIGHEST RATE PERMITTED BY APPLICABLE LAW, WHICHEVER IS LESS, FROM DATE OF SHIPMENT, ON AMOUNTS INVOICED AND UNPAID IN ACCORDANCE WITH THE PAYMENT TERMS.
COLLECTION AND ATTORNEY’S FEES
In the event of any alleged dispute, breach or default of this Agreement necessitating AQBT to retain an attorney to represent it, the Purchaser agrees to pay the AQBT’ costs and expenses including reasonable attorney’s fees, incurred in connection with, related to or arising out of enforcement of any term or provision of this Agreement, whether or not in connection with any legal or administrative proceedings, plus pre- and post-judgment interest and costs incurred, through appeal, and such shall be in addition to any other remedies or damages to which the AQBT may be entitled. Failure to pay these fees automatically voids any Warranty Provisions to which the Purchaser would otherwise be entitled.
Prices quoted, unless otherwise expressly stated in writing do not include sales, use, excise, value added or similar taxes or duties. Buyer shall pay these taxes directly if the law permits or will reimburse Seller if it is required to pay them. Buyer will provide tax exemption certificates or evidence of tax payment on request. The price quoted is based on the cost of raw materials, wage rates, shipping charges, freight, insurance premiums, landing charges and duties, railage and cartage applicable on the date on which a contract, acceptance, confirmation, tender or quotation is issued. Accordingly, any increase in such costs after such date and prior to the fulfillment of the contract may result in a price adaptation in good faith and in proportion to the changed circumstances, and shall thus be for the account of Buyer.
Except for the obligation to make payments, a party is not liable to fulfill its obligations under the agreement if performance is materially prevented as a consequence of natural catastrophes, terrorism, civil unrest, war, explosions, fire, breakdowns or damages to installations, constructions or machines, disruption to public transport, labour market conflicts (such as strikes and lock-outs) or other similar circumstances or acts of God. In the event of force majeure a party is not obligated to fulfill its obligations as long as, and to the extent, the force majeure continues. The party invoking force majeure shall inform the other party immediately in writing. If a force majeure continues for more than six months the other party may terminate the agreement with immediate effect by sending a written notice to the other party.
Buyer acknowledges that it may gain access to or otherwise learn Confidential Information (as hereinafter defined). Buyer agrees that it will use the Confidential Information only for purposes of performing its obligations under these Terms and Conditions (the “Permitted Purpose”) and shall not transfer or otherwise disclose the Confidential Information to any third party except as expressly permitted by these Terms and Conditions. Buyer shall: (a) give access to Confidential Information solely to those of its employees and approved subcontractors with a need to know such information for the Permitted Purpose, and (b) take the same security precautions to protect against disclosure or unauthorized use of Confidential Information that Buyer takes with its own confidential information, but in no event shall Buyer apply less than a reasonable standard of care to prevent such disclosure or unauthorized use. Confidential Information means any and all information relating to AQBT or its affiliates that may be accessed by or disclosed to Buyer including but not limited to quotations, price sheets, engineering and product designs, manuals, equipment and business specifications, trade secrets, reports, or other proprietary data.
INTELLECTUAL PROPERTY RIGHTS
All patents, copyrights, designs, drawings and other technical or commercial information relating to the products, including any software provided by Seller pursuant to any proposal, tender or the contract, and the intellectual property rights therein made or acquired by Seller prior to or during the preparation of the proposal or tender or in the course of work on the contract shall be and remain the exclusive property of Seller.
If a product furnished to Buyer becomes or, in Seller’s opinion, may become the subject of any claim, suit or proceeding for infringement of any intellectual property rights, Seller may at its option and expense (i) obtain for Buyer the right to use, lease or sell the product, (ii) replace the product, (iii) modify the product, or (iv) remove the product and refund the purchase price paid by Buyer less a reasonable amount for use, damage or obsolescence. Seller will not be liable for any infringement arising from the combination of products or from the use of a product in practicing a process. Seller’s total liability to Buyer will not, under any circumstances exceed the purchase price paid for the allegedly infringing product. Buyer agrees, at its expense, to protect and defend Seller against any claim of intellectual property right infringement arising from compliance with Buyer’s designs, specifications or instructions and to hold Seller harmless from damages, costs and expenses attributable to any such claim.
Buyer agrees to defend, indemnify and hold the Seller (and its agents, representatives, employees, officers, related companies, successors and assigns, and customers) harmless from all claims, demands, actions, damages and liabilities (including legal fees and consequential and incidental damages) arising out of any injury (including death) to any person or damage to any property in any way connected with any act or omission of Buyer, its agents, employees, or subcontractors.
No failure to exercise and no delay in exercising on the part of Seller any right, power or privilege hereunder will operate as a waiver thereof nor will any single or partial exercise of any right, power or privilege hereunder preclude further exercise of the same right, power or privilege.
VALIDITY OF PROVISIONS
In the event any provision or any part or portion of any provision of these Terms and Conditions shall be held to be invalid, void or otherwise unenforceable, such holding shall not affect the remaining part or portions of that provision, or any other provision hereof.
If Buyer fails to make any payment when due or to perform on time any of its other obligations under this contract Seller shall be entitled to suspend performance of the contract until the failure is remedied.
Buyer shall not be entitled to cede, transfer and/or assign any of its rights or delegate any of its obligations under this contract, without the prior written consent of Seller. Seller may cede, transfer and/or assign its rights or delegate any of its obligations under this contract without the prior approval of the Buyer.
Seller shall be entitled to terminate the quote, purchase order or other agreement to which these Terms and Conditions form a part in the event Buyer is in breach of any of its obligations hereunder and fails to remedy the breach within fifteen (15) days after receiving written notification thereof from Seller or if Buyer goes into liquidation, receivership, administration or makes any voluntary arrangement with any of its creditors. Any party may terminate the agreement with immediate effect if the other party is in material breach of the agreement. Any termination of the contract in accordance with the terms hereof shall become effective upon service of a written notice of termination on the other party. Upon termination, howsoever arising, Seller shall be entitled forthwith to suspend any further deliveries under the contract without any liability to Buyer. Within 14 days of such a notice of termination, howsoever arising, Buyer shall pay to Seller:
- the outstanding balance of the contract price for products which have been delivered and for those products which are then capable of being delivered, and
- the costs incurred or committed by Seller up to the date of notice of termination in performing work on products which are not then in a deliverable state plus a reasonable margin to be agreed between the parties which shall not be less than 15%, and
- the costs reasonably incurred by Seller as a result of the termination.