The terms and conditions contained in this order shall constitute the sole and exclusive agreement between Buyer and Seller pertaining to the goods and/or services ordered and this order shall supersede any terms or conditions of any purchase order made by Buyer. Nothing contained herein may be modified or amended except by a written instrument signed by both parties expressly stating that it’s the intention of the parties to modify or amend this order. No prior course of dealing or trade usage shall affect this order or be admissible to explain, modify or contradict the terms hereof.
Seller reserves the right to correct the price on any sales order, delivery ticket, or quotation due to typographical or mathematical error. All prices are to be in Canadian funds.
All sums owing by Buyer to Seller shall be payable at Seller’s office in Sherwood Park, Alberta, within 30 days of invoicing. All overdue sums shall bear interest at the rate or 1.5% per month (18% per annum). Seller may, at any time, require payment in advance prior to shipping goods or providing services to the Buyer. Buyer’s statement of “payment in full” or any such similar statement, or Seller’s endorsement on any cheque, draft or other method of payment, or any acceptance of a payment accompanied by a letter from Buyer shall not be deemed an accord and satisfaction, and Seller may accept and negotiate any such cheque, draft or other payment without prejudice to Seller’s right to demand and recover the balance of such amount actually otherwise due and owing.
4. TRANSFER OF TITLE
The Seller reserves the right to demand return of the goods and to dispose of the goods until the total purchase price and all amounts payable hereunder are received in full by the Seller. The Buyer agrees that property in the goods will not pass to the Buyer until the total purchase price and all amounts owing hereunder have been received by the Seller. Under no circumstances will goods supplied by the Buyer become fixtures in any property until the Seller has received payment in full, and the Buyer agrees to impose the same conditions on any third party who has access to or possession of the goods.
5. SECURITY INTEREST
The Buyer grants and the Seller reserves and takes a security interest in the goods and all proceeds thereof. In addition, the Buyer mortgages, assigns and transfers to and in favour of the Seller a security interest in all the Buyer’s present and after-acquired property and assets of any kind and wherever located. The Buyer agrees to take such actions and to execute such documents as are reasonably necessary to give effect to the charge contained herein and hereby waives all its rights under section 43(11) of the Personal Property Security Act of Alberta.
6. DISCLAIMER OF WARRANTIES
THE GOODS ARE BEING SOLD BY SELLER WITHOUT ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION ANY WARRANTY AS TO THE MERCHANTABILITY OF THE GOODS OR THEIR FITNESS FOR ANY PARTICULAR USE OR PURPOSE, except Seller warrants, for a period of one year from the earlier of delivery to the point of destination or to Buyer’s truck, that the goods shall conform to the description on the reverse hereof. Seller’s liability for any claim of breach of warranty is limited to repair or replacement, F.C.A. point of manufacture, of such goods as are non-conforming or, as Seller’s option, Seller may allow Buyer credit for such non-conforming goods upon Buyer’s return thereof to Seller. The description of the goods herein is subject to such manufacturing variations and tolerances as are recognized by industry practice.
7. SHIPMENT, RISK OF LOSS AND TITLE
Unless stated otherwise on the face of this order, shipment of the goods to Buyer shall be on the basis of F.C.A. Seller’s point of shipment and at Buyer’s risk of loss after acceptance for shipment by common carrier or Buyer’s truck.
Buyer shall not have the right to return goods to Seller without Seller’s prior written authorization. Seller will credit Buyer the amount of the invoices price associated with any goods for which written authorization is given or the current market value of such goods, whichever is less. Buyer shall pay all transportation charges associated with the return of such goods to Seller.
9. EXCUSABLE DELAYS
Seller shall not be charged with any liability for delay or non delivery of goods due to any cause beyond the Seller’s reasonable control.
All taxes (other than income or excess profit taxes) which may be imposed by any taxing authority arising from this order and for which Seller may be held responsible for collection or payment, either on its own behalf of that of Buyer (including, without limitation, all Goods and Services Taxes and other consumption, use or transaction taxes), shall be paid Buyer to Seller upon Seller’s demand.
Seller reserves the right to cancel all or any part of the undelivered portion of this order if Buyer fails to make timely payment for the goods ordered hereby or under any other order between Seller and Buyer or should fulfilment hereof in whole or in part be delayed or rendered impossible as determined by the Seller in its sole discretion, provided that this order shall be effective in respect of any goods shipped prior to the date of such cancellation.
Buyer shall not, in whole or in part, assign or transfer any interest herein or delegate any obligation hereunder without the prior written consent of Seller.
In no event shall Seller be liable for any loss or damage of any kind, whether direct, indirect or consequential, suffered by the Buyer or any other person arising from any delay or default in delivering the goods ordered hereby, regardless of causes, or from the failure of such goods to correspond in any manner to the description contained in this order, other than as set forth in paragraph 6 above.
14. LEGAL COSTS
Buyer shall pay Seller all legal costs incurred by Seller in enforcing the terms hereof on a full indemnity basis.
This order shall be governed by and construed in accordance with the laws of the Province of Alberta, Canada.