Terms & Conditions of Sale

For purposes of these terms and conditions of sale (“Terms”), “Seller” means the WardJet LLC entity named on the face of the attached proposal, quotation or invoice (the “Order Document”), and “Buyer” means the customer indicated on the Order Document. The Order Document along with these Terms (collectively, this “Agreement”) constitutes Seller’s offer to sell the equipment and/or parts (the “Goods”) and/or provide the services (the “Services”), in each case as identified in the Order Document, in accordance with these Terms. ANY AND ALL TERMS CONTAINED IN BUYER’S PURCHASE ORDER OR ANY DOCUMENT OR FORM SUBMITTED BY BUYER ARE EXPLICITLY REJECTED BY SELLER, AND ANY SUCH TERMS SHALL BE WHOLLY INAPPLICABLE TO ANY SALE MADE BY SELLER TO BUYER AND SHALL NOT BE BINDING IN ANY WAY ON SELLER.

1. Orders. All Order Documents are subject to acceptance or rejection by Buyer for the period of time set out in the Order Document or when no period is specified, within 30 days from the date of the Order Document; provided that any Order Document may be withdrawn or revoked by Seller at any time prior to Buyer’s acceptance of a purchase order. Seller will not be liable to Buyer unless Seller accepts such purchase order in writing, and such acceptance will be conditional upon Buyer’s acceptance of this Agreement. Acceptance by Buyer of this Agreement (orally or in writing) or Buyer’s issuance of a purchase order will evidence Buyer’s agreement to be bound solely by these Terms, notwithstanding the terms set forth in Buyer’s purchase order or any other document.

2. Prices and Payment Terms. Buyer agrees to pay to Seller the price set out in the Order Document. The price for Services is based upon Seller personnel working no more than eight hours per day, and the standard forty hour week, with the normal scheduled dates of Monday through Friday (holidays excluded). The price also assumes Seller will be able to perform the Services on a continuous basis without any delay. Payment is due as indicated in the Order Document. All prices are quoted in the currency indicated on the Order Document, and exclude all applicable sales, excise, value added and similar taxes, supplier surcharges, and all customs, tariffs, duties, freight, handling and insurance charges (where applicable), whether in force today or after the date of this Agreement. Buyer acknowledges and agrees to be responsible to pay, or reimburse Seller for, all such taxes, tariffs, duties and charges. Seller agrees to notify Buyer  of changes related to all such taxes, tariffs, duties and charges if or when they occur.

3. Irrevocability. Buyer agrees that this Agreement is unconditional and cannot be postponed or cancelled for any reason, except as set out in the “Termination for Default” section. In the event of cancellation by mutual agreement, or if Buyer refuses to accept the Goods or Services, Buyer will be subject liable to pay such cancellation charges as Seller determines are appropriate.

4. Delivery. Seller makes reasonable efforts to meet agreed-upon dates indicated in the Order Document; however, such dates are estimates only, and are based in part on Seller’s receipt of the down payment and all necessary information from Buyer. Failure to meet the agreed-upon date will not entitle Buyer to cancel this Agreement or to damages of any kind. Changes by Buyer in any dates may, at Seller’s discretion, result in an increase in the price. Unless otherwise indicated in the Order Document, delivery terms are EX-Works (Incoterms 2020) Seller’s applicable facility.

5. Title.  Upon delivery of the Goods to the carrier, the Goods will become the property of Buyer, subject to a reservation of a security interest in the same.  Any losses or damages to the Goods on or following delivery shall be borne by Buyer. 

6. Security Interest.   Buyer grants to Seller a purchase money security interest in the Goods to secure the payment of the purchase price of the Goods and all other amounts due to Seller from Buyer at the time of delivery of the Goods and afterwards incurred or owed by Buyer. Buyer agrees to execute and deliver to Seller any supplemental security agreements, financing statements and other documents as Seller may reasonably require to perfect, preserve and enforce such security interest.  Buyer will not remove the Goods from Buyer’s facility or permit the Goods to be subject to a lien in favour of any third party, until payment in full of all amounts owing under the Order Document.

7. Buyer’s Responsibility. The Goods may be purchased with certain safety features.  It is Buyer’s responsibility to always use appropriate personal protective equipment, and to operate the Goods in compliance with all applicable local, state and federal laws and regulations, and in compliance with the safety and operational instructions provided, irrespective of the purchase of any optional safety items or features. Seller is not responsible for any injuries, damage or other losses arising out of any configurations or changes to the Goods made by Buyer without Seller’s specific approval.

8. Buyer Facilities. In addition to any responsibilities set out in the Order Document, Buyer shall provide Seller with such facilities and resources as Seller may require to fulfill its obligations under this Agreement, including (i) providing Seller with a reasonable, safe and clear working area; (ii) ensuring that the site where the Goods will be located and/or Services performed meets the specifications provided by Seller; and (iii) providing all utilities in the form of electric current, light, water and heat as may be required for the Services. Seller can refuse to perform the Services until the site is ready, and Buyer may be responsible for extra charges for another visit. Seller will comply with Buyer’s safety and security policies while on-site, provided such policies are made available to Seller in advance. Buyer will not require releases or waivers from Seller’s personnel.

9. Limited Warranty; DISCLAIMER. The Goods are covered by Seller’s standard warranty  attached as Schedule A to this Agreement, subject to the disclaimers and conditions set forth therein. Any description of the Goods in an invoice or purchase order or other Order Document is for the sole purpose of identifying the Goods, and does not constitute a warranty that the Goods will conform to that description. SELLER DISCLAIMS ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS, INCLUDING IMPLIED WARRANTIES OR CONDITIONS OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

10. Documentation/Patents. All documentation, including but not limited to catalogs, manuals and all engineering data (design information, wiring diagrams, shop drawings etc.), used in the performance of this Agreement or provided to Buyer will remain Seller’s property, and may not be duplicated or reproduced or made available to third parties without Seller’s prior written consent. The sale of the Goods does not grant to Buyer any right or license of any kind under any patent owned or controlled by Seller or under which Seller is licensed, but the foregoing will not limit in any way the right of Buyer to use and sell the Goods. In the event a Good is resold, some software licenses may be subject to transfer fees payable to Seller.

11. LIMITATIONS OF LIABILITY. SELLER’S AGGREGATE LIABILITY UNDER OR ARISING OUT OF THIS AGREEMENT, OR RELATING IN ANY WAY TO THE GOODS OR SERVICES, INCLUDING LIQUIDATED DAMAGES OR CLAIMS FOR INDEMNITY, WILL NOT EXCEED THE PRICE INDICATED ON THE ORDER DOCUMENT. SELLER WILL NOT BE LIABLE TO BUYER OR TO ANY OTHER PERSON FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST REVENUE OR PROFITS, LOSS OF USE OR DOWNTIME. THE ABOVE LIMITATIONS AND EXCLUSIONS WILL APPLY TO THE FULLEST EXTENT OF THE LAW, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.

12. Indemnity. Buyer will hold harmless, indemnify and defend Seller, its affiliates, directors, officers, employees and agents (the “Seller Parties”) from and against any losses, liabilities, claims, suits, proceedings, damages, costs and expenses (“Liabilities”’) that may be imposed on, incurred by or asserted against any Seller Party by a third party arising out of the transactions contemplated by this Agreement or use or operation of the Goods, except that Buyer will not be liable to Seller for any portion of such Liabilities that resulted from Seller’s gross negligence, fraud, bad faith or wilful misconduct.

13. Termination for Default. In addition to any other remedy or right available to a party under this Agreement or at law or in equity, each party will have the right to terminate this Agreement immediately on written notice to the other party (i) if the other party is in default of any of its obligations hereunder and does not cure such default within 30 days after written notice of such breach has been given to the other party, or (ii) in the event of any proceeding by or against the other party in bankruptcy or insolvency, any appointment of a receiver or trustee or any assignment for the benefit of creditors.

14. Late Payment. Overdue payments will accrue interest at the rate of 1.5% per month (18% per annum) or the maximum amount permitted by applicable law, whichever is lower. If full payment is not received by the applicable due date, Buyer agrees to reimburse Seller for the reasonable costs of collection, including legal fees and expenses. Buyer acknowledges that Seller may refuse to deliver the Goods to Buyer and/or provide the Services until overdue amounts are paid in full.

15. Notices. All notices under this Agreement must be in writing and will be deemed given (i) on the date of delivery if personally delivered, (ii) if sent by overnight courier, one business day after delivery to the subject overnight courier, or (iii) five business days after mailing if mailed by first-class mail, postage prepaid, to the parties at their addresses on the Order Document, or such other address designated from time to time in writing by a party.

16. Assignment/Subcontracting. Buyer may not assign this Agreement without the written consent of Seller. Seller will have the right to assign this Agreement. Seller may engage or make use of its affiliates and other third-party subcontractors; provided that Seller will remain responsible for compliance by such persons with this Agreement.

17. Governing Law. If Buyer’s address on the Order Document is in the United States, this Agreement will be governed by the laws of the State of New York, and the courts of New York County, New York will have exclusive jurisdiction in the event of any dispute arising out of this Agreement. If Buyer’s address on the Order Document is not in the United States, this Agreement will be governed by the laws of the Province of Ontario, and the courts of the Province of Ontario will have exclusive jurisdiction in the event of any dispute arising out of this Agreement. The UN Convention on the International Sale of Goods is excluded from this Agreement. Each party express waives all rights to a jury trial in connection with any dispute arising out of or relating to this Agreement. The prevailing party in any dispute arising out or related to this Agreement will be entitled to be reimbursed for all incurred legal costs and expenses.

18. Force Majeure. Neither party is liable for delays or failures in performance (other than payment obligations) under this Agreement due to a cause beyond its reasonable control.

19. Independent Contractor. Seller and Buyer are independent contractors and nothing contained in this Agreement is intended nor will it be construed as creating a fiduciary relationship, partnership, joint venture or agency relationship between Seller and Buyer.

20. Entire Agreement; Amendment; Waiver; Survival. This Agreement constitutes the entire agreement between the parties, and supersedes any prior or differing promises, representations, warranties, statements or terms. This Agreement may be amended only in writing signed by both parties. Any failure to enforce any provision of this Agreement is not a waiver of that provision or of either party’s right to later enforce each and every provision. Sections 2, 3, 6, 7, 8, 9, 10, 12, 13, 15, 17,19 and 20 will continue in full force and effect after expiration or termination of this Agreement.

21. Language. The parties have expressly required that this Agreement and all related documents be drafted in English. Les parties confirment qu’elles ont exigé que ce contrat et tous documents s’y rattachant soient rédigés en anglais.

SCHEDULE A
EQUIPMENT WARRANTY

Seller warrants that the Goods will conform, in all material respects, with the specifications set out in Seller’s then-current standard documentation or proposal, and will be free from defects in material and workmanship for a period of 12 months from the date of delivery (or such other period as is expressly set out in the Order Document). Seller does not warrant uninterrupted or error-free operation of the Goods.

As Buyer’s sole and exclusive remedy, and Seller’s sole and exclusive liability, for breach of Seller’s warranty, Seller will, at its sole option and expense (except for travel expenses for technical visits to Buyer’s premises, which, if required, are payable by Buyer), either repair or replace the defective Goods. Any parts replaced by Seller or returned to Seller for replacement become the property of Seller, and the replacement part becomes Buyer property. The replacement part may not be new, but will be in good working order and functionally equivalent to the part replaced. Repaired or replacement parts are warrantied by Seller for the remainder of the original warranty period.

SELLER’S WARRANTY COVERS NON-WEAR PARTS ONLY, AND DOES NOT APPLY TO CONSUMABLES (LIGHTS, FILTERS, FUSES, ETC.) NOR TO ANY COMPONENTS, PARTS OR EQUIPMENT PROVIDED BY OTHER MANUFACTURERS (WHICH ARE COVERED BY THE RESPECTIVE MANUFACTURERS’ WARRANTY). THERE IS NO WARRANTY ON USED EQUIPMENT. SELLER’S WARRANTY DOES NOT COVER, AND IT HAS NO OBLIGATION UNDER THIS WARRANTY WITH RESPECT TO, DEFECTS, FAILURES, DAMAGES, DEFICIENCIES OR ERRORS WHICH ARE DUE TO (I) NORMAL WEAR AND TEAR, (II) THE GOODS HAVING BEEN INSTALLED, CONFIGURED, OPERATED OR MAINTAINED CONTRARY TO SELLER’S SAFETY AND OPERATIONAL INSTRUCTIONS OR OUTSIDE STATED LIMITS OF RATED AND NORMAL USAGE, (III) COMPLIANCE BY SELLER WITH ANY DRAWING, DESIGN OR SPECIFICATION SUPPLIED BY BUYER, (IV) ANY MISAPPLICATION, MODIFICATION, DISASSEMBLY, ABUSE, MISUSE, UNAUTHORIZED REPAIR, NEGLECT, ACCIDENT, IMPROPER MAINTENANCE, OR ABNORMAL CONDITIONS OF CLIMATE, DIRT OR CORROSIVE MATTER, (V) INSTALLATION, CONFIGURATION, OPERATION OR MAINTENANCE OF THE GOODS IN VIOLATION OF ANY APPLICABLE LOCAL, STATE OR FEDERAL LAW; OR (VI) ANY PRODUCT FOR WHICH SELLER IS NOT RESPONSIBLE (INCLUDING ANY THIRD PARTY PRODUCT PROVIDED WITH, OR INSTALLED ON, THE GOODS).

SELLER’S WARRANTY OBLIGATIONS ARE CONDITIONAL UPON BUYER: (W) GIVING SELLER PROMPT NOTICE AFTER DISCOVERY OF ANY WARRANTY BREACH; (X) PROVIDING SELLER WITH REASONABLE OPPORTUNITY TO INSPECT THE GOODS AND WITH SAFE ACCESS TO BUYER’S SITE; (Y) ALLOWING SELLER TO INSTALL MANDATORY ENGINEERING CHANGES, IF ANY; AND (Z) MAINTAINING AND OPERATING THE GOODS IN ACCORDANCE WITH SELLER’S SAFETY AND OPERATIONAL INSTRUCTIONS  AND WITHIN STATED LIMITS OF RATED AND NORMAL USAGE.

Seller will charge Buyer for returned parts or service requests relating to defects that are not covered by the warranty. Repairs, modification, disassembly, or re-work to the Goods without Seller’s written consent, or any substitution of Seller parts or use of parts that are not manufactured by Seller or specifically approved by Seller, will void this warranty. Buyer will return any defective parts for warranty during the warranty period at Buyer’s expense.