1. CONDITIONS OF SALE
Canadian Portable Structures (1992) Ltd. and its affiliates (“CPS”) provide the following Standard Terms and Conditions of Sale (“Terms and Conditions”), which apply to all quotations, sales orders, order confirmation, Purchaser purchase orders and sales made by CPS. All purchases by a customer, owner, or its agent (“Purchaser”) are expressly limited and conditional upon acceptance of the following Terms and Conditions, and no provision, printed or otherwise, contained in any quotation, purchase order, sales order, order confirmation, Purchaser’s purchase order, acceptance, confirmation, or acknowledgment which is inconsistent with, different from, or in addition to these Terms and Conditions is accepted by CPS unless specifically agreed to in writing by CPS. A purchase order received by CPS and accepted shall be subject to the Terms and Conditions and shall supercede any and all terms and conditions of Purchaser contained in the purchase order accepted by CPS.
The term “Product” or “Products” shall mean the portable structures, buildings and related equipment proposed for sale by CPS.
2. TIME LIMIT
All quotations are valid for a period of sixty (60) days, unless otherwise specified. Verbal quotations expire on the same day they are made unless confirmed in writing, whereupon they expire sixty (60) days from the date issued.
3. TAXES & OTHER CHARGES
Purchaser is responsible for the ultimate payment of all federal, state, local, foreign or provincial taxes, fees or charges of any nature whatsoever imposed by any governmental authority including the harmonized sales tax, provincial or state sales tax and duties, that may be assessed or levied on products and services sold hereunder. Unless otherwise stated, prices do not include such taxes, fees or charges which will be added to the sales price where CPS has a legal obligation to collect them. If Purchaser is exempt, Purchaser shall provide CPS with the documentation necessary to support such a claim and to allow CPS to document its decision not to collect such tax, fee or charge.
Prices quoted herein are based upon presently prevailing duties, rates of duties, taxes, special assessments, monetary exchange and freight as applied to materials and/or equipment purchased or imported by CPS. CPS reserves the right to amend the price(s) in a quotation where variations or increases in the cost of material, components or parts and in regulated costs such as rate of duties, taxes, special assessments, monetary exchange, and freight between the date of quotation and date of delivery are deemed material by CPS.
Unless otherwise stated in a purchase order, CPS’s price does not include any transportation, crating or packaging charges, or any taxes, excises, duties, tariffs or other governmental charges which CPS may be required to pay or collect under any existing or future law, with respect to the sale, transportation, delivery, storage, installation or use of any of the Products. All prices and discounts are subject to change without notice prior to acceptance of a quotation.
5. TERMS OF PAYMENT
The terms of payment shall be as set out in the quotation or sales order provided by CPS.
Interest will be added to past-due accounts at a rate of 1.5% per month, or the maximum amount allowed by law. CPS will reserve the right to stop or delay order processing if Purchaser is not in full compliance with the contractual payment terms. If shipments are delayed by Purchaser, payment will become due from the date CPS is prepared to make shipment. Products held for Purchaser because of any delay due to Purchaser’s request to hold or inability to receive the Product will be at the risk and expense of Purchaser. CPS at its sole option, and without incurring any liability, may suspend its performance until such time as the overdue payment is made or CPS receives assurances, adequate in CPS’s opinion, to indicate that the payment shall be promptly made. In the event of such suspension, the delivery schedule and purchase order price shall be equitably extended and increased taking into account the delay and costs resulting from such suspension. Purchaser shall promptly pay CPS for all costs and related overhead costs arising from such suspensions. If Purchaser suspends performance of either party for whatsoever reason, the delivery schedule and purchase order price shall be equitably extended and increased, taking into account the delay and all costs resulting from such suspension.
6. CREDIT APPROVAL
Acceptance of purchase order is subject to approval of Purchaser’s credit worthiness by CPS. Notwithstanding such acceptance and/or approval if, in CPS’s sole discretion and judgment, Purchaser’s financial condition does not at any time warrant the continuation of production of the Product or shipment of the Product on the original terms, CPS reserves the right to request payment in full in advance.
Pricing and shipping terms shall be Ex Works (EXW) (as defined in Incoterms 2000) the manufacturing or warehouse facility of CPS. If Purchaser has not issued inspection or shipping instructions by the time the Product is ready for shipment, CPS may select any reasonable method of shipment, without liability by reason of its selection. Shipments made on Purchaser’s behalf shall be insured at Purchaser’s expense. If CPS is required to arrange for shipment of the Product or any parts thereof, Purchaser shall reimburse CPS for all freight, insurance, duties and other shipping related costs and Purchaser will pay CPS a handling fee for each such shipment. Shipment of Product held by reason of Purchaser’s request or inability to receive Product will be at the risk and expense of Purchaser. Claims for shortages in shipment shall be deemed waived unless made in writing to CPS within ten (10) days from date of receipt of the Product.
CPS reserves the right to decline to ship a Product with a shipper that CPS deems unsatisfactory.
8. DELIVERY DATES
All delivery and shipment dates quoted are approximate and subject to CPS’s availability schedule. CPS will make reasonable efforts to meet the delivery date(s) quoted, however, CPS does not assume liability, consequential or otherwise, because of any delay or failure to deliver all or part of a purchase order for any reason. All delivery promises are predicated upon prompt and timely receipt from Purchaser of all necessary deposits, information, material, drawings, plans and documentation and should be reconfirmed at the time of CPS’s written order acceptance.
9. EXCUSABLE DELAYS
CPS shall not be liable for loss, damages, detention, or delays resulting from causes beyond its reasonable control or caused by but not limited to strikes, restrictions of the Canadian or United States Government or other governments having jurisdiction, delays in transportation, inability to obtain necessary labour, materials or manufacturing facilities, third party providers of the Purchaser delaying the installation of the Product or any other cause reasonably beyond its control, whether similar or dissimilar to those listed.
10. SHIPMENT F.O.B.
If Purchaser advises CPS that the Product is to be shipped F.O.B. and CPS agrees, title and risk of loss shall pass to Purchaser at the F.O.B. point. If Purchaser has not issued inspection and shipping instructions by the time the Product is ready for shipment CPS may select any reasonable method of shipment, without liability by reason of its selection. Shipments may be insured at Purchaser’s expense, and CPS will not place valuation upon shipments unless specifically requested in writing by Purchaser or required for export purposes.
CPS warrants only that the Products manufactured by CPS shall be free from defects in material and workmanship; provided, however, that this warranty shall be limited to Products found to be defective within a period of twelve (12) months from the date of the bill of lading, whichever expires first, except as may otherwise be provided (“Warranty Period”). This warranty does not cover Purchaser furnished/specified products, equipment and/or Purchaser furnished materials or parts.
The sole and exclusive remedy of Purchaser for any liability against CPS of any kind, including (a) warranty, express or implied whether contained in the Terms and Conditions hereof, or in any terms additional or supplemental hereto, (b) contract, (c) negligence, (d) tort, or (e) otherwise, is limited to the repair or replacement at CPS’s designated point of manufacture, by CPS of the Products which an examination by CPS reveals to be defective during the Warranty Period, or at CPS’s option to refund to Purchaser the money paid to CPS for such Products. Purchaser and CPS may mutually agree to acceptance of the Products to be designated “as is” with an agreed upon reduction in the price. CPS will have no obligation to remedy defects unless, within the Warranty Period, Purchaser gives CPS written notice of its claim and returns the defective Product after receipt of shipping instructions from CPS to return such Products. Purchaser will ship the Product to CPS, freight prepaid, and CPS will return the Product to Purchaser, freight collect. All Products returned for repair or replacement pursuant to this section are to be packaged in accordance with the instructions received from CPS or in a manner to ensure the returned Product is not damaged in shipping.
In no event shall CPS incur any obligation to repair or replace Products which are determined by CPS to be defective due to Purchaser misuse, or due to use not in accordance with specified operating conditions and operating and maintenance instructions. CPS retains the option to witness the operation of the Product to verify operating conditions. CPS shall not incur any obligation hereunder with respect to Products which are repaired or modified in any way by the Purchaser without CPS’s prior written approval.
EXCEPT FOR THE EXPRESS WARRANTY STATED HEREIN, CPS DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE PRODUCTS, INCLUDING ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABLILITY OR FITNESS FOR PARTICULAR PURPOSE.
12. CONSEQUENTIAL DAMAGES; LIMITATION OF LIABILITY. CPS WILL NOT BE LIABLE FOR ANY LOST PROFITS, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER ARISING UNDER WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION, OR ANY OTHER CAUSE OR COMBINATION OF CAUSES WHATSOEVER. THIS LIMITATION WILL APPLY NOTHWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. In no case will CPS’s liability exceed the amount paid to CPS by Purchaser for the specific Product(s) giving arise to such liability. Purchaser agrees to indemnify and hold CPS harmless from and against all liabilities, claims, and demands of third parties of any kind relating to the Product(s) and their use arising after shipment of the Product(s).
PURCHASER’S REMEDIES ARE SPECIFICALLY LIMITED TO THE REPAIR OR REPLACEMENT OF THE PRODUCT AND IS EXCLUSIVE OF ALL OTHER REMEDIES. SHOULD THESE REMEDIES BE FOUND INADEQUATE OR TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE FOR ANY REASON WHATSOEVER, PURCHASER AGREES THAT RETURN OF THE FULL PURCHASE ORDER PRICE TO IT BY CPS SHALL PREVENT THE REMEDIES FROM FAILING OF THEIR ESSENTIAL PURPOSE AND SHALL BE CONSIDERED BY PURCHASER AS A FAIR AND ADEQUATE REMEDY.
13. TITLE, SECURITY INTEREST
Purchaser agrees that CPS shall retain a security interest in the Products and any proceeds thereof to secure any portion of the purchase order price not paid, and Purchaser will, on request, execute a security agreement in such form as is required by CPS. CPS shall have all rights and remedies accorded by law or equity to a secured seller, including the right to enter upon the premises where the Products shall be located for purposes of removing or rendering them inoperative, and all such rights and remedies shall be cumulative. Purchaser shall maintain insurance against all risks to cover full replacement value of the Products until CPS has been paid in full.
14. FORCE MAJEURE
CPS or Purchaser will be excused from their respective obligations in the event and to the extent that their respective performance is delayed or prevented (a) by any circumstance (except financial) reasonably beyond their control or (b) by fire, explosion, breakdown of machinery or equipment, plant shutdown, strikes or other labour disputes, riots or other civil disturbances, or voluntary or involuntary compliance with any law, order, regulation, recommendation or request of any governmental authority. In addition, CPS will be excused in the event of its inability to obtain materials, components, parts or supplies necessary for manufacture of the Product, or total or partial failure of any of its usual means of transportation of the Product.
Purchaser may request changes to the Product after CPS’s acceptance of Purchaser’s purchaser order, and CPS will quote any changes in price, time of delivery, or other terms associated with the requested change. The proposed change shall not become effective unless and until Purchaser issues a purchaser order recording the change and CPS confirms its acceptance in writing.
16. CANCELLATION CHARGES
Purchaser agrees to pay to CPS a cancellation charge in the event it (1) cancels any order or portion thereof or (2) fails to meet any obligation thus causing cancellation. Cancellation charges for a purchase order will be one hundred percent (100%) prorated by work completed on the order, unless otherwise stated in a quotation. Purchaser agrees that this charge is a reasonable approximation of the damages that would result from its cancellation, and that the charge is not a penalty, but is used as a means to avoid the difficulty of proving the actual damages incurred by CPS. No order may be cancelled after shipment has occurred and/or unless accepted in writing by CPS.
No backcharges will be paid or allowed by CPS unless CPS is notified in writing of any Product defect claim or omission pursuant to the terms herein. All backcharges must be approved in writing by CPS before any Product is repaired, replaced or altered in any manner by Purchaser or its designee, or returned to CPS.
18. Installation, Technical Assistance.
The Product shall be installed by and at the expense of Purchaser by qualified personnel, unless otherwise expressly stipulated and agreed to by CPS. In no event will any technical assistance or installation provided by CPS constitute a waiver by it of any of these Terms and Conditions or affect or expand CPS’s obligations as stated herein. Installation of Products furnished hereunder will be by the Purchaser, unless otherwise agreed to in writing.
Field service will be provided on a per diem charge basis upon written authorization by Purchaser and will be at the rates in effect at the time such services are provided, unless otherwise agreed to in writing. Field service at the job site to diagnose Product problems will be provided on a per diem basis at the then-current rates.
19. Obligations of Purchaser
Purchaser is solely responsible for identifying and defining all factors which may affect the performance, reliability or operation of the Product furnished by CPS, including such considerations as selecting and specifying the materials of construction for the Product, the foundation, determining environmental issues where the Product is to be located. Any delays in the Purchaser determining such factors shall be at the expense of the Purchaser. Following delivery, it is Purchaser’s responsibility to (a) protect the Product from corrosion, damage and debris; (b) install the Product in a clean condition and environment consistent with accepted industrial practice or any specific instructions provided by CPS; (c) assemble the Product in a manner that meets the design criteria for the Product; and (d) ensure that electrical, gas and water supply hook up meets the applicable building code.
20. Installation Services & Site Preparation
In order to prevent voidance of warranty, installation and initialization of the Product may require it to be performed by CPS employees or CPS trained and authorized representatives. Installation services are not included in the purchase price of the Product sold hereunder, unless expressly so stated in the quotation. Details regarding installation services, conditions and rates, if applicable, are contained in a separate written enclosure. If Purchaser has contracted with CPS for installation services or such services are included in the quotation, Purchaser will complete all site preparation and operating environment requirements before installation begins. Purchaser will co-ordinate CPS’s installation activities with those of Purchaser’s personnel and any other contractors at Purchaser’s facility. It is Purchaser’s responsibility to identify and resolve all physical and procedural conflicts at Purchaser’s facility without cost to CPS and to request whatever information and drawings it requires.
No change, modification or waiver to any terms or scope of the purchase order will be binding and valid unless it is accepted in writing and signed by an authorized representative of CPS.
22. Proprietary Rights
CPS retains for itself all proprietary rights in and to all designs, engineering details and other data and materials pertaining to all Products supplied by CPS and to all discoveries, inventions, patents and other proprietary rights arising out of the work done in connection with the Products or with any and all Products developed as a result thereof, including the sole right to manufacture any such Products. Purchaser warrants that it will not divulge, disclose or in any way distribute or make use of such information and that it will not manufacture or engage to have manufactured such Products utilizing CPS’s proprietary rights.
23. Entire Agreement
The Terms and Conditions in conjunction with any valid quotation provided by CPS constitute the entire agreement between the parties with respect to the subject matter hereof and expressly supercedes all proposals and previous negotiations and understandings, whether written or oral, between the parties with respect to the subject matter hereof.
24. APPLICABLE LAW
The agreement of the parties shall be construed and enforced in accordance with the laws of the Province of Ontario and venue for any disputes shall be Toronto, Ontario, Canada. The parties disclaim any applicability of the U.N. Convention of the International Sale of Goods to the order.