Standard Terms and Conditions of Sale
(1.1) “CLAIM” means a claim under the WARRANTY.
(1.2) “CONDITIONS” mean these Standard Terms and Conditions of Sale. (1.3) “CORRECTION” means repair or replacement, at EBCO’s option, of WORK pursuant to the WARRANTY.
(1.4) “EBCO” means EBCO Industries Ltd.
(1.5) “EX WORKS” has the meaning set forth in the International Chamber of Commerce publication “Incoterms 1990” or any successor publication.
(1.6) “PURCHASE AGREEMENT” means any resulting agreement of sale or purchase order entered into between EBCO and the PURCHASER.
(1.7) “PURCHASER” means the purchaser identified on the QUOTATION.
(1.8) “QUOTATION” means every bid, quotation and estimate of price, that deals with quantity and specifications of WORK.
(1.9) “RELATED PARTIES” means the subsidiary, parent and other affiliated entities of EBCO or the PURCHASER as applicable.
(1.10) “TAXES” means any and all Federal and Provincial taxes, duties and charges which may be applicable to the sale of WORK by EBCO to the PURCHASER.
(1.11) “TERMS” means the terms of the PURCHASE AGREEMENT, and includes the QUOTATION and these CONDITIONS.
(1.12) “WARRANTY” means the express warranty of EBCO in Section 3 herein.
(1.13) “WARRANTY PERIOD” means the twelve (12) month period immediately following the date of delivery of the WORK.
(1.14) “WORK” means any and all products and/or services sold by EBCO to the PURCHASER and includes WORK that fundamentally breaches the PURCHASE AGREEMENT, but excludes products that are manufactured by other parties.
(2.1) These CONDITIONS will be incorporated into every QUOTATION submitted by EBCO for the sale of WORK and will govern and apply to the exclusion of all other TERMS contained in the PURCHASE AGREEMENT and the terms of any other agreement entered into between EBCO and the PURCHASER, unless specifically referred to and amended in writing by EBCO.
(2.2) Prices are quoted “EX WORKS” EBCO’s Richmond, B.C. manufacturing facility and are based upon receiving orders for the quantities specified in the QUOTATION.
(2.3) Unless expressly specified in the QUOTATION, prices are quoted exclusive of any TAXES. In cases where the QUOTATION expressly states that TAXES are included, any new TAXES or subsequent changes to existing TAXES implemented after the QUOTATION date will be reflected by EBCO in a change to the price.
(2.4) The PURCHASER will be responsible for and pay all costs, fees, and licences required by law for inspection, use, operation, or approval of the WORK.
(2.5) Unless specified in the QUOTATION, crating, packing, and loading are not included in the price.
(2.6) Risk of loss or damage to the WORK will pass to the PURCHASER upon delivery of the WORK to the PURCHASER at EBCO’s Richmond manufacturing facility. Any loss or damage to all or part of the WORK after such delivery will not release the PURCHASER from any obligations of payment.
(2.7) Payment will be due and payable to EBCO thirty (30) calendar days from the date the WORK is delivered to PURCHASER or offered to be delivered unless otherwise specifically agreed to in writing by EBCO. Interest will accrue at the rate of 2% monthly (26.8% per annum) on all accounts with overdue balances and will apply from the date such account becomes overdue.
(3.1) During the WARRANTY PERIOD, and subject as otherwise set out herein, EBCO warrants only that the WORK sold by EBCO will not be defective WORK. Without assuming liability, and to the extent permitted by the applicable manufacturer, EBCO will endeavour to flow to the PURCHASER any warranty for products not manufactured by EBCO.
(3.2) In the event of a CLAIM, the PURCHASER will notify EBCO in writing, with appropriate documentation, during the WARRANTY PERIOD. In the event that the WORK is defective, as determined by EBCO, EBCO’s total responsibility will be limited to CORRECTION at EBCO’s plant of the WORK that is defective. EBCO will not assume any expense or liability for CORRECTION of defective WORK carried out by the PURCHASER or any third party without the prior written authorization of EBCO. All shipping costs associated with a CLAIM will be borne by the PURCHASER.
(3.3) This WARRANTY will be void if during the WARRANTY PERIOD the WORK has been improperly used, installed, maintained, operated under abnormal conditions or contrary to applicable specifications, or fails as a result of normal wear and tear.
(3.4) In no event will EBCO be liable to the PURCHASER or any third party for any of the following:
(a) third party claims against the PURCHASER for damages other than damages for bodily injury, including death, caused by EBCO’s negligence;
(b) WORK which has been modified by any party other than EBCO;
(c) WORK defects which are due to defective design and/or materials; or;
(d) special, incidental, consequential, indirect or punitive damages (other than for bodily injury, including death, caused by EBCO’s negligence) including, but not limited to, lost profits (or profits lost), revenues or savings, curtailment or interruption of plant operation, strike, pollution or the removal, disassembly and/or reinstallation of WORK, even if EBCO is informed of the possibility of such damages.
(3.5) APART FROM THE EXPRESS WARRANTY HEREIN, EBCO DISCLAIMS ALL OTHER EXPRESS OR IMPLIED CONDITIONS OR WARRANTIES, INCLUDING ANY STATUTORY CONDITIONS OR WARRANTIES THAT THE WORK WILL BE OF MERCHANTABLE QUALITY OR FIT AND SUFFICIENT FOR ITS INTENDED PURPOSE.
4. NO LIABILITY
EBCO will not be liable for any delay in the delivery of WORK or for any breach of the PURCHASE AGREEMENT or for any damage suffered by the PURCHASER where the delay, breach or damage is the direct or indirect result of any cause beyond the reasonable control of EBCO, including the failure of any computer (including embedded microprocessors) dependent system of EBCO, the PURCHASER or any third party to properly process dates and date related data within and between the 20th and 21st centuries.
5. CANCELLATION BY EBCO
EBCO reserves the right to cancel the PURCHASE AGREEMENT immediately upon receipt by the PURCHASER of written notice, and without prejudice to EBCO’s right to recover damages, under any of the following circumstances:
(5.1) liquidation, insolvency or bankruptcy of the PURCHASER;
(5.2) distress or execution upon any property of the PURCHASER which is not paid out or discharged within fourteen (14) days;
(5.3) appointment of a receiver or receiver/manager for the PURCHASER;
(5.4) the PURCHASER stops payment, or ceases or threatens to cease to carry on his business or to pay its debts, as and when they come due; or
(5.5) the PURCHASER breaches any term of the PURCHASE AGREEMENT and fails to remedy such breach within fourteen (14) days of its receipt of written notice from EBCO.
Before acceptance of the PURCHASE AGREEMENT, EBCO reserves the right to approve the PURCHASER’s creditworthiness. Furthermore if the PURCHASER’s credit limit would be exceeded by invoicing for WORK, EBCO is entitled to withhold delivery of the WORK until arrangements satisfactory to EBCO are made.
7. REMEDIES UPON PURCHASER’S DEFAULT
Title and property in the WORK will pass to the PURCHASER upon payment of the full PURCHASE AGREEMENT price together with all costs associated with packing, crating and loading if applicable, and any TAXES. Upon failure to make any payment as provided, the full PURCHASE AGREEMENT price, and any note or security given on account will forthwith become due and payable and EBCO may enter into the premises where the WORK is located and take possession of and remove the WORK as its personal property. Furthermore, EBCO may retain any and all partial payments already received without prejudicing EBCO’s right to further claims. The PURCHASER hereby grants to EBCO a security interest in all of the WORK and all proceeds therefrom to secure payment of all amounts owing by the PURCHASER and performance of all of the PURCHASER’s obligations under the PURCHASE AGREEMENT. EBCO is entitled to file such Financing Statements in respect of the security interest granted herein at such personal property registries as it deems reasonable. The PURCHASER waives its right to receive a copy of any such Financing Statement and of any Verification Statement.
No change to the TERMS will have any force or validity without EBCO’s written consent and due consideration for the cost of such changes. Amendments to the TERMS must be consented to in writing by an officer of EBCO and any purported consent to an amendment by other than an officer of EBCO will not be binding on EBCO.
In the event that information or material of a confidential or proprietary nature is disclosed by EBCO to the PURCHASER in the QUOTATION or PURCHASE AGREEMENT or in the course of providing the WORK, the PURCHASER agrees:
(i) to maintain such information in strictest confidence;
(ii) to disclose such information only to those of its employees with a need to know for the purpose of the PURCHASE AGREEMENT;
(iii) if requested by EBCO, to execute EBCO’s Standard Confidentiality Agreement; and
(iv) to not reproduce or use such information for any purpose not expressly consented to by EBCO in writing.
Should any TERM be determined to be unenforceable or prohibited by any applicable law, such TERM will be severable, and the remaining TERMS will be valid and binding.
11. NO WAIVER
Unless EBCO signs a written waiver, the failure of EBCO in any one or more instances to enforce any TERM will not be construed as a waiver of such TERM.
12. LIMITATION OF LIABILITY
Notwithstanding anything in these CONDITIONS or the TERMS or any applicable statutory provisions, EBCO’s total aggregate liability to the PURCHASER in respect of WORK and the PURCHASE AGREEMENT will not exceed the lesser of:
(a) the PURCHASER’s actual, provable, direct damages arising out of the WORK and/or the PURCHASE AGREEMENT;
(b) the amount of monies actually paid by the PURCHASER to EBCO for the WORK; or
(c) the unit price of the WORK in question, as specified in the QUOTATION,
regardless of the basis on which the PURCHASER is entitled to claim damages against EBCO, including fundamental breach, negligence, misrepresentation or other contract or tort claim or on any other basis.
13. GOVERNING LAW
The TERMS will be governed by and interpreted in accordance with the laws of the Province of British Columbia, Canada. The parties hereby irrevocably attorn to the exclusive jurisdiction of the Courts of the Province of British Columbia in the event of any dispute or proceeding hereunder.
The TERMS will enure to the benefit of and be binding upon the parties and their respective successors, permitted assigns and RELATED PARTIES.
15. ASSIGNMENT RESTRICTED
The PURCHASER will not be entitled to assign its rights or obligations under the TERMS without the prior written consent of EBCO.
16. SURVIVAL OF TERMS
The TERMS will survive the completion of any PURCHASE AGREEMENT between the parties and the completion of all WORK.
17. U.N. CONVENTION NOT APPLICABLE
The United Nations Convention on Contracts for the International Sale of Goods (1980) and any successor legislation will not apply in any way to the TERMS or the sale of the WORK from EBCO to the PURCHASER.
Any notice permitted or required to be given under the TERMS will be given in writing and may be delivered by telecopier or personal delivery to the address or telecopier number of the party set out in the QUOTATION. Any such notice will be deemed to have been received, if telecopied, when successfully transmitted and if delivered, upon delivery.
20. AUTHORITY TO BIND
The PURCHASER represents that the person accepting the QUOTATION and any PURCHASE AGREEMENT on behalf of the PURCHASER has the authority to do so and to bind the PURCHASER by so doing.