Terms & Conditions
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1. Entire Agreement. These terms and conditions and Delnice’s sales order constitute a final, complete and exclusive agreement of the parties (the “Agreement”). The terms contained in Delnice’s sales order shall control if inconsistent with these terms and conditions. No prior dealings, or course or usage of trade shall supplement or explain any terms herein unless consented to by Delnice in writing.
2. Applicability of Terms and Conditions. Unless otherwise agreed to in writing by both parties, Delnice objects to and rejects and shall not be bound by any additional, different or inconsistent terms and conditions on the Customer’s agreement, purchaser order or other writing.
3. Delivery. Delnice will deliver the Goods to the Customer on or before the delivery time set out in the sales order (“Delivery Time”) and in accordance with the delivery term specified therein. If no delivery term is specified, the delivery term will be Delivery Duty Paid (DDP), as such term is defined in Incoterms in force on the effective date of the Agreement.
4. Failure to Accept Delivery. If the Customer fails to accept delivery at the Delivery Time for reasons other than substantial non-conformity of the Goods, Delnice shall arrange for storage of the Goods at the Customer’s sole risk and expense. Delnice may in its sole discretion, arrange for storage with a third party or in accordance with the terms of Delnice’s standard storage agreement. Notwithstanding the foregoing, the Customer shall pay any part of the purchase price of the Goods (the “Purchase Price”) which becomes due on delivery, as if delivery had taken place.
5. Price and Payment. Except as otherwise agreed in writing, prices will be firm as of the date of order and paid in Canadian dollars. Payment shall be due to Delnice upon delivery unless otherwise provided in the sales order and shall be paid without set-off, deduction, or withholding. Overdue payments shall bear interest at a rate of 18% per annum.
6. Taxes. Delnice shall be responsible for paying all taxes and duties associated with the Goods other than sales taxes. All sales taxes (GST, PST and any other excise tax) shall be paid by the Customer.
7. Force Majeure. Delnice shall not be liable for any loss or damage arising from Delnice’s failure to perform any obligation or delay resulting from any cause beyond the reasonable control of Delnice or from any act of God, act of war whether declared or undeclared, act of civil or military authority, act of any governmental authority, acts or omissions of the Customer or contractors or subcontractors, civil disturbance, insurrection or riot, sabotage, fire, pandemics, inclement weather conditions, earthquake, flood, strike, work stoppage or other labour difficulty, embargo, fuel or energy shortage, delay or accident in shipping or transportation, failure or delay in obtaining necessary manufacturing facilities, labour or materials from its usual sources, or unforeseen circumstances or contingencies.
8. Warranty. Delnice represents and warrants that the Goods are in good working order and fit for ordinary use (the “Warranty”). Other than the Warranty, no other warranties, conditions, guarantees or similar obligations, whether express or implied by fact, by law, including any statute or regulation, by custom or trade usage, or by any course of dealing, including but not limited to any implied warranties or conditions of merchantability or fitness for purpose or fitness for a particular purpose, are applicable. The Warranty is in the nature of liquidated damages and in substitution for any damages to which the Customer might otherwise be entitled at law or in equity and, in particular, Customer hereby agrees that in lieu of an action for breach of contract, Customer will rely upon the provisions of the Warranty.
9. Cancellation. Following execution of the sales order, Customer’s order is non-cancellable for any reason.
10. Limits of Liability. Delnice shall not be liable, whether based in contract, warranty, indemnity, tort (including negligence), strict liability, or alternative tort remedies or any other theory of law or equity, for any indirect, special, incidental, punitive, exemplary or consequential damages including, but not limited to, damage to associated Goods, loss of profits or revenue, loss of production, loss of use of Customer’s property, plant, Goods or system downtime costs or claims of Customer’s customers. The remedies provided herein are exclusive and Delnice’s total aggregate liability to Customer hereunder shall not exceed half of the purchase price paid by Customer for the specific Goods or services from which any claim or damages hereunder may arise.
11. Risk of Loss and Security Interest. Except if otherwise set forth in the Agreement, risk of loss or damage to the Goods shall pass to Customer upon delivery. Title shall pass upon delivery and payment in full by the Customer.
12. Independent Contractor. The parties agree that Delnice is an independent contractor and not an employee or agent of the Customer. Goods operators and other Customer employees, agents, or subcontractors assigned to assist Delnice may receive temporary instructions, directions or control from Delnice but shall at all times be considered the employees, agents, subcontractors of the Customer and not of Delnice.
13. Amendments. No modifications, revisions or amendments to this Agreement will be binding unless made in writing and signed by both parties. No action, delay, or failure to act by Delnice shall constitute a waiver of any right available to Delnice under this Agreement except to the extent as may be specifically agreed to in writing by Delnice.
14. Assignment; Validity. This Agreement is not assignable without the prior written consent of Delnice, which consent may be withheld at Delnice’s sole discretion. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
15. Applicable Law. This Agreement and each of the documents contemplated by or delivered under or in connection with this Agreement are governed by and are to be construed in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein and treated in all respects as an Alberta contract. The parties to this Agreement hereby irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts of the Province of and all courts competent to hear appeals therefrom.