1. ACCEPTANCE. These terms and conditions of sale (“Terms”) and the written quotation issued by Seller to Buyer (“Written Quotation”) (the Terms and the Written Quotation are collectively the “Sales Agreement”) govern all sales of products and materials (collectively the “Products”) between the legal entity set out in the Written Quotation as the seller (“Seller”) and the buyer set out in the Written Quotation (“Buyer”) with respect to the sale and supply of the Product set out in the Sales Agreement, regardless of whether Buyer purchases the Products through the medium of verbal orders, written purchase orders or electronic orders (collectively, "Purchase Orders"). Buyer acknowledges and agrees that, by signing this Sales Agreement or by ordering and/or receiving any Product from Seller pursuant to the Written Quotation, this Sales Agreement shall become a binding contract between Buyer and Seller on the terms and conditions set out in this Sales Agreement All other terms, conditions, representations, warranties and/or any other terms contained in the documents of Buyer, including but not limited to, terms and conditions, forms and/or Purchase Orders of Buyer are excluded in their entirety and expressly rejected by Seller unless, prior to the earlier of (i) Buyer first ordering any Product pursuant to the Written Quotation, or (ii) Buyer receiving or taking possession of any Product pursuant to the Written Quotation, Seller has both received in writing and expressly accepted in writing the terms of Buyer’s Purchase Order.
  2. PRICE. The price of the Products, as set forth in the Sales Agreement, does not include sales, carbon, excise or any other taxes or assessments levied by any federal, provincial, municipal or other governmental authority, unless Seller expressly agrees otherwise in writing. If during the performance of the Sales Agreement, the cost of materials used to manufacture the Product increases, through no fault of Seller, the price of Products under the Sales Agreement shall be equitably adjusted by an amount reasonably necessary to cover any such price increases. Such price increases shall be documented through quotes, invoices, or receipts provided by Seller to Buyer.
  3. PAYMENT. Payments must be made to Seller in Canadian dollars (unless the Sales Agreement is for sales in U.S. Dollars) within (30) days of the date of an invoice. Payments not received when due will bear interest at the rate of 1.5% per month (18% per annum). Seller reserves the right, in its sole discretion, to limit or cancel the credit of Buyer, and Seller may require or demand advance payment or adequate assurances of performance from Buyer prior to taking any preparatory steps to perform the Sales Agreement or commence the manufacture of the Products. Notwithstanding the foregoing payment terms, in the event of a conflict or discrepancy between the payment terms set forth on the face of a Written Quotation and the terms set forth herein, the payment terms set out in the Written Quotation shall prevail. If at any time the financial capacity of the Buyer becomes impaired or unsatisfactory to Seller, Seller may require payment or satisfactory security or guaranty in advance of making the Product available to Buyer. If Buyer fails to deliver such security or guaranty, to make a payment when due or to comply with any other term of sale in the Sales Agreement, Seller reserves the right to cancel all unfilled orders without notice. The parties shall bear their own expenses incurred in enforcing their respective rights under this Sales Agreement.
  4. TITLE. Title to and ownership of the Product, and any products manufactured from the Products, does not pass to Buyer until all amounts owing by Buyer to Seller under this Sales Agreement (and all cheques or negotiable instruments) have been paid in full by the required payment date (the “Relevant Date”). If Buyer sells the Product, or any products manufactured from the Product, before the Relevant Date, Buyer’s right to receive payment from its customer will be held in trust for the account of Seller. Buyer acknowledges that Seller may be entitled under applicable law to register its interest in the Product as a security interest and may be required, for that purpose, to file financing statements necessary and other relevant information, as appropriate, in order to evidence the Seller’s ownership of the Product. Buyer further agrees to cooperate with Seller to ensure that such financing statements are properly filed and/or recorded and to co-operate with Seller, as necessary, to perfect or continue the perfection of its security interest. Seller shall ensure that any such security interests are discharged prior to title and ownership passing to Buyer in accordance with the Sales Agreement.
  5. SPECIFICATIONS. Seller shall meet the specifications for the Product set out in the Written Quotation (“Specifications”) for the applicable Product.
  6. SHIPMENTS; RISK OF LOSS. Buyer may direct that the Products be picked up by Buyer (or Buyer’s carrier) at Seller’s facility or request that the Products be delivered by Seller to Buyer’s facility. If the Products are picked up by Buyer (or Buyer’s carrier) at Seller’s facility, (i) prices are F.O.B. Seller’s facility, (ii) risk of loss shall pass to Buyer upon delivery of the Products to Buyer or its carrier at Seller’s facility, and (iii) Seller is not responsible for damage or loss in transit and Buyer must make claims for shipping loss or damage directly to Buyer’s carrier. If Seller expressly agrees in writing in the Written Quotation to deliver the Products to Buyer at Buyer’s facility, (i) prices are F.O.B. Buyer’s facility, (ii) risk of loss shall pass to Buyer upon delivery of the Products to Buyer’s facility, (iii) shipments will be made from points, over routes and by carriers selected by Seller in its sole discretion, (iv) Seller’s shipping dates are estimates only, dates of delivery are not guaranteed and Buyer shall have no claim for damages resulting from any delay in delivery beyond the estimated delivery dates, (v) Seller may make partial shipments at Seller's sole discretion, (vi) Buyer shall bear destination demurrage and detention charges, and (vii) rail and truck shipments are subject to rates, rules and regulations in carriers’ tariffs applicable on date of shipment. Seller’s truck scale weights and tickets and/or Seller’s carrier’s stenciled tare weights and tickets shall be used and shall be final and conclusive as to the quantity of Products delivered to Buyer. Buyer must obtain adequate insurance to cover the Products from the time risk of loss has passed from Seller to Buyer.
  7. LIMITED WARRANTY. Seller warrants to Buyer that any Products sold to Buyer pursuant to the Sales Agreement shall meet the Specifications at the time risk of loss passes to Buyer. Buyer acknowledges and agrees that there are no other representations, warranties or conditions whatsoever, express or implied (by common law, equity, statutory or otherwise) including, but not limited to, any representations, warranties or conditions as to merchantability or fitness for purpose, with respect to any Products sold by Seller to Buyer. Buyer shall accept the Product supplied under the Sales Agreement that meets the Specifications. Seller’s limited warranty of any Product is of no effect if (i) the Product is not properly stored, used or handled properly, (ii) the defect of the Product resulted from damages occurring after risk of loss with respect to the Product has passed to Buyer, (iii) the defect of the Product has not been reported to Seller within thirty (30) days after delivery to, or pick-up by, Buyer (or Buyer’s carrier), or (iv) the defect of the Product should have been discovered by Buyer in Buyer's inspection and it is not reported to Seller within ten (10) days after delivery to, or pick-up by, Buyer (or Buyer’s carrier).
  8. DEFECTIVE PRODUCTS. If a Product does not conform to the limited warranty in Section 7 and the warranty is not excluded by Section 7, Buyer must notify Seller promptly, and in no event later than the deadlines specified in Section 7. Upon receipt of a claims report, Seller may either ask Buyer for a sample of the defective Product or schedule an inspection of the defective Product. If Seller determines that the limited warranty applies, then Seller may repair or replace the defective Product at no cost to Buyer. Except as provided in this Section 8, such repair or replacement is the sole remedy of Buyer for any breach of the limited warranty provided by Seller in Section 7 of these Terms.
  9. LIMITATION OF LIABILITY. Notwithstanding any other provision of the Sales Agreement, Seller’s total aggregate liability to the Buyer in relation to the sale of the Product to Buyer, whether arising out of or in connection with this Sales Agreement, under statute, in tort (for negligence or otherwise) or any other basis in law or equity shall not exceed the purchase price paid by Buyer to Seller for the Product under the Sales Agreement. Notwithstanding any other provision of the Sales Agreement, Seller shall not be liable to Buyer for loss of contract, revenues, profits, expected profits, damages by reason of loss of business reputation or opportunities, or for any indirect, special, exemplary, punitive, incidental or consequential loss or damage of any nature or kind whatsoever and howsoever arising at any time or from any cause whatsoever under any statute, contract, tort (for negligence or otherwise) or any other basis in law or equity. Buyer shall mitigate any losses suffered, sustained or incurred which might be the subject of a claim by Buyer against Seller under this Sales Agreement.
  10. ENVIRONMENTAL FEE & FUEL SURCHAGE. The fuel surcharge and the environmental fee/levy (and such other similar terms used by Seller and shown on the Written Quotation) are charged by Seller to Buyer to offset costs and other related expenses incurred by Seller on a company-wide basis to extract, manufacture and produce the Products in a safe and environmentally responsible manner, to cover the Seller’s overall company-wide delivery costs, and to meet the Company’s margin requirements. The fuel surcharge and the environmental fee/levy are shown as separate line items on Buyer’s invoices. These additional charges are not taxes, surcharges or fees imposed by or remitted to any governmental or regulatory authority and are Seller’s own charges. The fuel surcharge and environmental fee/levy amounts or percentages charged by Seller from time to time may be changed at the discretion of Seller.
  11. RETURNS. No Products may be returned to Seller without providing prompt written notice of that intent and obtaining Seller's prior written consent.
  12. HAZARDS AND PRECAUTIONARY PROCEDURES; INDEMNITY. A Material Safety Data Sheet (or the then-current equivalent of same) (“MSDS”) with complete safety information is available from Seller. Buyer agrees that it will comply with all hazards and precautionary procedures with respect to the handling, transportation or use of the Products and will handle and use the Products accordingly. Buyer shall provide or make available such MSDS to all persons who may purchase, use or come into contact with the Products, including, without limitation, its employees and customers. Buyer agrees to indemnify Seller for any claims made against Seller, and for associated damages and expenses (including reasonable legal fees and expenses), due, in whole or in part, to Buyer’s failure to comply with such hazards and precautionary procedures, to manage accordingly or to provide such information as set forth above or required by law.
  13. TERMINATION. (i) Seller may terminate this Sales Agreement immediately upon written notice to Buyer in the event that Buyer has breached any of the terms or conditions contained in this Sales Agreement and such breach has not been cured within three (3) days after being notified in writing of the breach by Seller. If the Sales Agreement is terminated by Seller pursuant to Buyer's breach, Seller shall be entitled to recover from Buyer any sum due at the time of the termination of the Sales Agreement and any other losses or damages suffered by Seller as a result of Buyer’s breach. (ii) This Sales Agreement may be terminated by Seller, for its convenience and at its sole option, in whole or in part, at any time at any time upon ten (10) days' prior written notice of termination to Buyer. Upon termination pursuant to Section 13(ii) herein, Seller shall have no further obligation or liability to Buyer under this Sales Agreement and Buyer shall pay Seller for all Products sold and delivered prior to the effective date of termination of this Sales Agreement.
  14. FORCE MAJEURE. Seller is not liable or responsible for delay or failure to perform any of Seller's obligations under the Sales Agreement as a result of any cause beyond its reasonable control, whether foreseeable or not, and including, but not limited to, labour disputes (including labour disputes affecting Seller’s employees), breakdown of Seller’s production equipment or machinery, industry disturbance, fires, unusually severe weather conditions, earthquakes, floods, declared or undeclared war, epidemics, computer malfunctions, civil unrest, riots, lack of supplies, delay in transportation, governmental, regulatory or legal action, act of God ("Force Majeure"). The date of delivery shall be extended for a period equal to the time lost by reason of any of the Force Majeure.
  15. ENTIRE AGREEMENT; AMENDMENT; WAIVER. The Sales Agreement constitutes the entire agreement between Seller and Buyer with respect to the subject matter hereof and cancels and supersedes all prior negotiations, proposals, representations, commitments, understandings or agreements between Seller and Buyer, whether written or oral. There are no other representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the parties other than as expressly set forth in this Sales Agreement. No modification of or amendment to this Sales Agreement is valid or binding unless set forth in writing and duly executed by both of Seller and Buyer hereto. No waiver of any breach of any term or provision of this Sales Agreement is effective or binding unless made in writing and signed by the party purporting to give the same and, unless otherwise provided, is limited to the specific breach. The waiver of any provision of this Sales Agreement shall not be construed to be a waiver of the provision itself as to subsequent application or any other provision of the Sales Agreement.
  16. SUCCESSORS AND ASSIGNS. The Sales Agreement will enure to the benefit of and be binding upon the respective successors and permitted assigns of Buyer and Seller. Buyer may not assign the Sales Agreement without Seller's prior written consent (in its sole discretion).
  17. GOVERNING LAW. The validity, construction and interpretation of this Sales Agreement is governed by, and must be construed in accordance with, the law of the Province where the Products sold to Buyer are manufactured (the “Governing Province”) and the federal laws of Canada applicable therein, without regard to such Province’s conflicts of law provisions.
  18. DISPUTE RESOLUTION. Any dispute in connection with the Sales Agreement shall be resolved through binding arbitration by a single arbitrator in the Governing Province, pursuant to the commercial arbitration rules of the Governing Province. The results of any arbitration shall be final and non-appealable. Notwithstanding the agreement to arbitrate, Seller reserves the right, in its sole discretion, to elect not to proceed with binding arbitration and invoke the jurisdiction of a court of competent jurisdiction in the Governing Province to hear and adjudicate such dispute in connection with the Sales Agreement. Seller shall exercise its discretion to arbitrate or use a court of competent jurisdiction within sixty (60) days of the date a claim is submitted in writing by either Seller or Buyer to the other party, failing which the claim shall continue through binding arbitration.
  19. JURISDICTION AND VENUE. Subject to Section 18, Buyer irrevocably submits and agrees to the jurisdiction of the provincial and federal courts of the Governing Province. To the extent permitted by applicable law, Buyer waives and agrees not to assert as a defense in any action, suit or proceeding related to, or in connection with, the Sales Agreement, any claim (i) that Buyer is not personally subject to the jurisdiction of the provincial and federal courts in the Governing Province; (ii) that the venue of the action, suit or proceeding is improper; (iii) that the action, suit or proceeding is brought in an inconvenient forum; or (iv) that the subject matter of the Sales Agreement may not be enforced in or by the provincial or federal courts of the Governing Province. Without prejudice to any other mode of service, Buyer consents to service of process relating to any such proceedings by personal or prepaid mailing (air mail if international) in registered or certified form a copy of the process to Buyer at the address set forth in Section 21.
  20. SEVERABILITY. If any provision of the Sales Agreement is held by a court of competent jurisdiction to be contrary to law or public policy, the remaining provisions of the Sales Agreement remain in full force and effect.
  21. NOTICES. No notice or other communication under the Sales Agreement is sufficient to affect any rights, remedies or obligations of either party unless the notice or communication is in writing and (as elected by the party giving the notice) is (i) personally delivered, (ii) transmitted by electronic mail, (iii) transmitted by a recognized courier service, or (iv) mailed (air mail if international) in registered or certified form, to the party to which notice or communication is being given at the following address: (a) if to Seller, at its address designated on the face of the Written Quotation; ATTN: SALES DEPARTMENT, and (b) if to Buyer, at its address designated on the face of the Written Quotation. Notices or communications shall be deemed to have been duly given (i) on the date of receipt if delivered personally, (ii) on the date of transmission if transmitted by electronic mail, (iii) on the day of pickup by courier if delivered by courier or (iv) five days after mailing if delivered by the postal service. Either party may change its address by providing written notice to the other party.
  22. CONSTRUCTION. The headings of the Sections in these Terms are provided for convenience only and may not be considered in the interpretation of the Sales Agreement. The parties agree that the provisions of the Sales Agreement may not be construed in favour of or against either party by reason of the extent to which a party or its professional advisors prepared the Sales Agreement.
  23. SURVIVAL. The terms of this Sales Agreement that by their nature are reasonably intended by the parties to survive the Sales Agreement’s expiration or earlier termination, including, but not limited to, Sections 7, 8, 9, 11, 12, 13, 16, 17, 18, 19, 20, 22 and this Section 23, shall survive the expiration or termination of the Sales Agreement.