Standard Terms and Conditions of Sale
Please read carefully and retain
- Terms. These Terms and Conditions of Sale, together with any Credit Application signed by Buyer, and any invoices issued by Seller (collectively the “Terms”), constitute the exclusive contract between Buyer and Seller and supersede all previous oral or written communications such that there are no terms, understandings, or agreements between Seller and Buyer regarding the Products, other than those set forth in the Terms. Seller’s commencement of work on the Products subject to Buyer’s order, shipment of the Products, or performance of all or a portion of the services subject to an order, whichever occurs first, shall constitute an acceptance by Seller of the Terms without any additional or different terms. These Terms and Conditions may not be altered, amended, nor waived except in writing signed by an officer of the party to be bound thereby. No provisions of Buyer’s purchase order or other document or communication will be binding on Seller.
- Price. Quoted prices are based upon present taxes (other than sales taxes), freight rates, applicable tariff classifications and import duties. Buyer shall pay any increased costs resulting from changes in such taxes, rates, tariff classifications and duties or from Buyer’s selection of means of transportation. Buyer shall pay or reimburse Seller for all taxes or other charges by any applicable national, state, provincial, or municipal government upon the sale, use, production, or transportation of Product, which Seller is required to pay or collect.
- Price Adjustments. Seller may adjust Product prices at any time. Buyer may suspend orders immediately upon notice of a price increase. In the event price protection is stated in a written agreement between the parties, Seller may temporarily suspend such Product’s price protection in extraordinary market conditions as determined by Seller in its discretion. Seller shall reinstate the Product’s price protection upon Seller’s determination that the market condition for the Product is no longer extraordinary.
- Payment. All amounts are due within 30 days of the date of the invoice, unless otherwise stated in the invoice. If Buyer does not pay any amounts when due, Buyer shall pay interest charges of 2% per month, or the maximum amount permitted by applicable law, whichever is less. All amounts payable by Buyer shall be due without set-off or abatement. Buyer shall pay all charges, cost and legal fees incurred in collecting amounts owed including all legal costs on a solicitor and his own client basis.
- Title and Risk of Loss. Title of Products shall pass to Buyer upon payment in full. Notwithstanding the foregoing, risk of loss for Products transfers to Buyer when the Product is made available to Buyer at Seller’s shipping point, unless Products are shipped in Seller’s vehicles in which case risk of loss transfers to Buyer when the vehicle first enters Buyer’s property. Buyer shall unload railroad tank cars within 48 hours of delivery (Sundays and holidays excepted).
- Warranty. Buyer represents that it is familiar with the characteristics, qualities and uses of the Products and that Buyer is not relying on Seller’s skill or judgement to select or furnish Products for any particular purpose. Seller warrants that Seller branded Products conform to Seller’s published specifications at the time of delivery. Seller warrants that services provided by Seller will be consistent with Seller’s standard specifications or, if none, with Seller’s standard practices. THE FOREGOING WARRANTIES ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES OR CONDITIONS EXPRESS OR IMPLIED. SELLER EXPRESSLY EXCLUDES ANY IMPLIED OR EXPRESS WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY.
- Remedies. Seller’s liability for nonconforming Products is exclusively limited, at Seller’s option, to replacement of the defective Products or refund of the purchase price of such Products. Seller’s liability for any defective or negligent service is limited to Seller re-preforming the service or a refund of an amount not to exceed the amount paid for the service, or, if the services were provided free of charge, to pay an amount not to exceed the amount paid for the Products to which the services related in the 12 months prior to the event of liability.
- LIMITATION ON LIABILITY. IN NO EVENT WILL:
- SELLER BE LIABLE FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES OR LOSS OF PROFITS, SALES OR REVENUES, LOST BUSINESS OR BUSINESS INTERRUPTION FROM ANY CAUSE OR FOR ANY REASON WHATSOEVER, IRRESPECTIVE OF WHETHER THE CLAIM ARISES FROM ACTUAL OR ALLEGED BREACH OF WARRANTY, INDEMNIFICATION, BREACH OF CONTRACT, NEGLIGENCE INCLUDING PRODUCT LIABILITY, CONTRIBUTION OR ANY LEGAL THEORY AND IN NO EVENT WILL SELLER BE LIABLE FOR LOST PROFITS, COSTS OR LOSSES NOT ASSOCIATED WITH DIRECT PHYSICAL DAMAGE TO PROPERTY FOR ANY CLAIMS MADE UNDER OR RELATED TO THE SALE OF PRODUCTS OR SERVICES TO BUYER; AND
- SELLER’S TOTAL LIABLITY TO BUYER RELATED TO PRODUCTS, GOODS OR SERVICES OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE TERMS, EXCEED THE PURCHASE PRICE OF SUCH PRODUCT, GOOD OR SERVICE.
- Indemnity. Buyer agrees to defend, indemnify and hold Seller, its officers, directors, agents, and employees harmless from all claims, demands, actions and causes of action relating to personal injury or property damage to third parties, including lawyer’s fees on a solicitor and his own client basis and costs (“Claims”) incurred as a result thereof, to the extent of its negligence or arising after delivery of the Products to Buyer. Seller agrees to defend, indemnify and hold Buyer, its officers, directors, agents, and employees harmless from Claims to the extent of its gross negligence.
- Claims. Any claim for shortage or non-conforming Products must be made in writing to Seller within 30 days after Buyer’s receipt of the Product. Any claim for non-delivery of Product must be made within 30 days after the date upon which the Product was to be delivered. As to any claim not reasonably discoverable within such 30 day period (including claims discoverable only in processing, further manufacture, or other use or resale), such claim must be in writing and received by Seller within 180 days after Buyer’s receipt of the Products. Failure of Seller to receive written notice of any such claim within the appliable time period shall be deemed an absolute and unconditional waiver by Buyer of such claim. Products may not be returned without Seller’s permission and transportation for return will not be paid by Seller unless authorized in advance. Seller may refuse the return if it is for custom or special-order product of chemical or equipment.
- Force Majeure. Seller is not liable for non-performance or delay in performance caused by circumstances beyond Seller’s control. (“Force Majeure Event”). A Force Majeure Event includes, without limitation, (a) acts of God, war, riots, fire, explosions, floods, strikes, lockouts, injunctions, accidents, Product short supply, unforeseen shutdown of major sources of supply, breakage of machinery or apparatus, or national emergency, (b) Seller’s inability to obtain at prices Seller deems in its discretion to be commercially reasonable, the Product, fuel, power, raw materials, labour, containers or transportation facilities, (c) the occurrence of any unforeseeable contingency making performance impracticable, or (d) compliance with any applicable governmental statue, regulation, decree, rule or order. Any delivery so suspended shall be cancelled without liability, but these Terms and Conditions shall otherwise remain unaffected. This section does not apply to payment obligations.
- Product Stewardship. Buyer agrees that Products will be used, handled, stored, transported and disposed of in such a manner as is necessary for the safety and protection or persons, property and the environment, in accordance with the manufacturer’s recommendations and applicable law and regulations. Buyer agrees to instruct its employees with respect to, and to make certain that they know and understand, procedures necessary to enable them to comply with the requirements set forth therein and make certain that they are adequately trained in the use, handling, storage, transportation and disposition of the Products. Buyer further agrees to deliver the most recent edition of Product literature, including Safety Data Sheets, to its employees and customers and maintain a written record of such deliveries. Buyer shall only sell to those who can handle, use, store, transport and dispose of Products safely.
- Termination. Any order or delivery may be terminated or suspended, (a) by either party if any proceeding under bankruptcy is brought by or against the other party, (b) by a party if the other party defaults in its material obligations and such default is not cured within a reasonable time if such default is curable, or (c) by Seller if it has reason to doubt the ability or willingness of Buyer to pay for the Products.
- Governing Law and Jurisdiction. These Terms and Conditions shall be governed by and construed in accordance with the laws of the Province of Alberta. Buyer and Seller acknowledge that the Courts of the Province of Alberta shall have exclusive jurisdiction to resolve any claims between the parties, and attorn to the jurisdiction of that such courts for all purposes. The application of the International Sale of Goods Act (Alberta) to this contract expressly excluded.