Terms and Conditions (Standard Warranty)
1. GENERAL – The terms and conditions of sale contained herein apply to Buyer’s purchase of products (each a “Product”) manufactured, distributed and sold by NDL INDUSTRIES INC. (“Seller”). Any reference in these terms and conditions of sale (“Terms”) to “Buyer” refer to the buyer of any Product. Quotations made and all purchase orders entered into by Seller, and acceptance by Seller of any order by confirmation or commencement of performance shall be on the basis of these Terms, even though no reference is made thereto at the time of acceptance. Seller’s failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of these Terms. Buyer’s assent to these Terms shall be deemed to be given by implication unless Buyer gives written notice of objection to Seller promptly under receipt of this document. Any changes in the terms and conditions of sale contained herein must specifically be agreed to in writing by Seller before becoming binding on Seller. These Terms, together with the quotation or order acknowledgement (collectively, this “Agreement”), comprise the entire agreement between Buyer and Seller, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of any Product covered under these Terms, the terms and conditions of such contract shall prevail in respect of such Product to the extent they conflict or are inconsistent with these Terms.
2. ACCEPTANCE OF ORDERS – All orders from Buyer are subject to acceptance by Seller, and Seller reserves the right to accept or reject any orders in whole or in part for any reason, including, without limitation, in the event there is an error, typographical error, inaccuracy, omission, or mistake to the price of any Product, Product descriptions, promotions, offers, or availability.
3. CANCELLATION OF ORDERS – Cancellation of orders will not be accepted unless written approval has been obtained from Seller.
4. PRICES – Prices quoted or acknowledged by Seller for any Products are firm for the quantities and the shipping schedules set forth in the quotation or order acknowledgment, but are subject to revision if quantities and/or shipping schedules are changed by Buyer. Prices and shipping schedules for any Products are subject to change by Seller without notice. If the applicable price is increased before delivery of the Product by Seller to shipping point, then Seller will bill the Buyer on the basis of such increased price.
5. TRANSPORTATION – All sales are made F.O.B. shipping point unless agreed otherwise in advance and in writing by Seller. All claims for loss or damage must be filed by Buyer with the carrier. Unless specific instructions are given by Buyer, Seller reserves the right to select carrier and routing.
6. TITLE AND RISK OF LOSS – Seller’s title passes to Buyer upon making delivery of material purchased hereunder to carrier at shipping point in good condition.
7. DELIVERY – Unless otherwise agreed in writing by the parties, the Product shall be delivered to the address noted on Buyer’s order. Shipping dates are approximate and are based on prompt receipt from Buyer of all necessary information. Seller will not be responsible for delays in delivery due to events beyond Seller’s control, including any Force Majeure Event. Seller reserves the right to make partial shipments. For custom merchandise made to Buyer’s specifications, Seller reserves the right to deliver up to 10% more than the exact quantity ordered, and Buyer is obligated to pay for the full quantity shipped.
8. NON-DELIVERY – The quantity of any units of Product as recorded by Seller on dispatch from shipping point is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can demonstrate to Seller’s satisfaction, in Seller’s sole discretion, that the Buyer received a different quantity of the Products. Buyer must examine all units of Product upon receipt. If an order error has occurred, Buyer must notify Seller of the particulars within five calendar days of receiving delivery of such Products. Any liability of Seller for non-delivery of any units of Product shall be limited to replacing such units within a reasonable time or adjusting the invoice respecting such units to reflect the actual quantity delivered. Without limiting the generality of the foregoing, Seller shall not be liable for any loss or damage in transit.
9. RETURN POLICY – Buyer has 90 days from receipt of any Product or units of Product to return such Product or units; provided that Buyer must obtain a written approval from Seller prior to shipping any Product or units of Product back to Seller. All returns must be sent prepaid by Buyer. At the discretion of Seller, unused and undamaged units of Product may, under certain circumstances, be accepted back for credit or exchange. A restocking charge may apply. Custom made Products which are returned as defective, but are found to meet the specifications agreed upon, will be subject to a re‑testing charge.
10. PAYMENT AND TERMS – All invoices on credit terms are due and payable 30 days from the date of invoice. No discounts are allowed. Invoices remaining unpaid after their due date will be subject to interest charge of 1.5% per month from their due date until paid. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, reasonable legal fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Product if Buyer fails to pay any amounts when due hereunder and such failure continues for five (5) days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
Each shipment shall be considered a separate and independent transaction, and payment therefore shall be made accordingly. If shipment is delayed by Buyer, Seller has the right to issue invoice on the date Seller is prepared to make shipment. If the work covered by the purchase order is delayed by Buyer, the invoiced amount shall be based on the purchase price and the percentage of completion.
Products held for Buyer shall be at the risk and expense of Buyer.
If, in the judgement of Seller, the financial condition of Buyer at any time does not justify continuation of production or shipment on the terms of payment originally specified, Seller may require full or partial payment in advance. In the event Buyer becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, Seller shall be entitled to cancel any order then outstanding and shall be reimbursed by Buyer for its cancellation charges.
11. TAXES – Unless otherwise specifically provided for in the applicable quotation or order acknowledgment, the amount of any harmonized sales tax, goods and services tax, provincial sales tax, value added tax, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any applicable governmental authority on any amounts payable by Buyer shall be paid by Buyer.
12. LIMITED WARRANTY – Seller warrants to Buyer that: (a) for a period of twelve (12) months from the date of the original shipment, the Product will be free from significant defects in materials and workmanship and materially conform to the applicable published ratings and specifications applicable to such Product at the time of shipment or, in the case of custom made merchandise or prototypes, the specifications agreed on by Buyer and Seller; (b) no action or lien exists or is threatened against Seller than would interfere with Buyer’s use of the Product; and (c) Buyer will receive good and valid title to the Product, free and clear of all liens. Buyer’s approval of any prototype provided by Seller shall be proof that the design meets the agreed specification. The foregoing limited warranty does not apply where the Product has (i) been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by Seller or (ii) been reconstructed, repaired or altered by a person other than Seller or its authorized representations.
Seller’s entire liability and obligation to Buyer under this limited warranty shall be expressly limited to the repair, replacement or crediting, as Seller may determine at its sole discretion, of any defective or nonconforming merchandise for which Buyer has first given written notice to Seller of such defect or nonconformity in the manner as provided below. No claim under this limited warranty shall be valid unless Buyer furnishes Seller notice in writing of any defect in materials and/or workmanship or any nonconformity with any applicable published ratings or specifications, specifying in detail any such defect or nonconformity. Seller shall have the option, exercisable in its sole discretion, of requiring the return to it or an authorized representative of the defective merchandise, transportation prepaid, for inspection.
In the event that some, but not all items of merchandise are defective within the terms of the limited warranty set forth above, the repair, replacement or crediting of defective merchandise at Seller’s option shall apply only to such defective items falling within the terms of such limited warranty and Buyer shall have no right to return or seek credit for any items not so defective.
THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE, AND SELLER SHALL HAVE NO FURTHER OR ADDITIONAL OBLIGATION WITH RESPECT TO ANY MERCHANDISE SOLD TO BUYER.
13. EXCLUSIONS – EXCEPT FOR THE EXPRESS WARRANTIES SET OUT IN SECTION 13, ALL REPRESENTATIONS, WARRANTIES, ENDORSEMENTS, AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE OR NON-INFRINGEMENT AND ANY IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS FOR A PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, DURABILITY, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXCLUDED.
14. LIMITATION OF LIABILITY – Seller’s sole liability and Buyer’s exclusive remedy for damages from any cause whatsoever (and regardless of the form of action) under this Agreement, including Seller’s breach of this Agreement, shall be limited to the repair, replacement or crediting, at Seller’s sole option pursuant to the limited warranty set forth above, of the specific merchandise that caused the damage or are the subject matter of, or directly related to the cause of action. In no event shall Seller, its directors, officers, agents, employees, suppliers and distributors be liable for, and Buyer hereby waives its right to receive, any indirect, economic, special, commercial, incidental, exemplary or consequences damages, including lost profits, loss of business revenue or earnings, loss to other systems or equipment of which a Product is a part and damages caused by delays or a failure to realize expected savings, even if Seller is aware of or has been advised of the possibility of such damages. The limitation of liability set out in this Section 15 is intended to apply and does apply to any damages, losses or liability however caused, regardless of the theory of liability (contract, tort, negligence or otherwise), except with respect to statutory liability for intentional and gross negligence act or omissions, for which no limit applies. Notwithstanding the foregoing, to the extent Seller is found liable for any amounts to Buyer under this Agreement, Seller’s aggregate cumulative liability will not exceed the amounts received by Seller from Buyer in the 12 months from the date of the applicable claim.
15. FORCE MAJEURE – Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in manufacture or delivery resulting from any cause, act or circumstance beyond the reasonable control of Seller, including by way of illustration and not by way of limitation, compliance by Seller with any applicable laws or government regulation, or from acts of God, floods, fires, earthquakes or other casualty or accident, strikes, lockouts, factory shutdowns or alterations, lockdowns, travel or shipping restrictions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, embargoes, riots, civil unresent, national emergency, epidemic, pandemic or other disorders, delays or shortages in transportation, or inability to obtain sufficient quantity of fuel, power, labor, manufacturing facilities of materials or other supplies from the usual sources of Seller (each a “Force Majeure Event”).
Seller shall not be held to the price of the Product in the applicable quotation or order acknowledgement in the event cost of materials needed for the Seller’s manufacturing process of the Product, would increase beyond what can normally be expected as a result of any cause, act or circumstance beyond the reasonable control of Seller, including any of Force Majeure Events. Should such cost increases occur, Seller and Buyer agree to re‑negotiate the price for the Product based on the actual cost increases to Seller for such Product as a result of said price increases of materials used in the manufacturing of such Product.
16. RELATIONSHIP OF THE PARTIES – The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
17. NO THIRD-PARTY BENEFICIARIES – The parties do not confer any legal, equitable or other rights or remedies of any nature whatsoever under or by reason of this Agreement upon any person other than the parties to this Agreement and their respective successors and permitted assigns.
18. NOTICES – All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth on the face of the applicable quotation or order confirmation or to such other address that may be designated by the receiving party in writing. Notices sent in accordance with this Section 20 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email (in each case, with confirmation of transmission) if sent during the addressee’s normal business hours, and on the next business day if sent after the addressee’s normal business hours; and (d) on the fourth day after the date mailed by certified or registered mail by the Canada Post Corporation, return receipt requested, postage prepaid.
19. SEVERALABILITY – If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
20. WAIVER – The failure by Seller to insist on strict compliance with any provision of these terms and conditions will not be deemed to be a waiver of such provision, and a waiver of any provision of these terms and conditions at any one time or times will not be deemed to be a waiver for any other time. The failure of Seller to assert its rights in a timely fashion for any of its rights or remedies under these terms and conditions will not be interpreted as a novation or a waiver of any subsequent or continuing breach and will not serve to modify, alter or restrict the right of Seller to assert any rights at any time thereafter.
21. GOVERNING LAW – This Agreement shall be governed by and interpreted in accordance with the laws of the Province of British Columbia and the federal laws of Canada as if made and performed by and between parties situate in such province and without regard to the conflict of law rules that would apply a different body of law. The International Sale of Goods Act of British Columbia and the United Nations Convention on Contracts for the International Sale of Goods or any local implementation of such Convention will not apply in any way to this Agreement, or in respect of any legal relationship associated therewith or derived therefrom.
22. DISPUTES – Subject to the enforcement by Seller of its rights under this Agreement in any jurisdiction requiring injunctive relief, all disputes arising out of or in connection this Agreement, or in respect of any legal relationship associated therewith or derived therefrom, shall be referred to and finally resolved by binding arbitration, with the losing party paying all costs of arbitration (including reasonable legal fees and expenses) to be conducted by a single arbitrator in Vancouver, British Columbia, pursuant to the provisions of the Arbitration Act (British Columbia) and any amendments thereto, and the determination of such arbitrator will be final and binding upon Buyer and Seller; and if involving court proceedings, will be submitted to and be subject to the jurisdiction of the courts of the Province of British Columbia, with the losing party responsible for all costs and expenses, including without limitation, court costs and reasonable legal fees and expenses. A judgment on the award of the arbitrator may be entered into any court having jurisdiction over the party or parties against whom an award may be issued and each of Buyer and Seller agrees to and hereby waives any defences against the enforceability and execution of any such judgment awarded by the arbitrator as hereby contemplated. Judgment on the award of an arbitrator may be entered by any court having jurisdiction over the person or property of the person against whom enforcement of the judgment is sought.
23. SURVIVAL – Sections 21 (Governing Law), 22 (Dispute) and 23 (Survival) of these Terms shall will remain in force after any termination or expiration of this Agreement.