UNIFILLER SYSTEMS INC (SELLER)
1.1. The acceptance of the Seller’s quotation includes the acceptance of the following terms and conditions (the “T&Cs”). The T&Cs apply to supply of goods (the “Goods”), services secondary to supply of Goods and maintenance services (the “Services”) by the Seller.
1.2. For the interpretation of the T&Cs, the term “Contract” means: either (i) Seller’s quotation (the “Quotation”), and/or (ii) the order issued by Buyer and accepted by Seller and resulting from the Quotation (the “Order”).
1.3. The contractual documents applicable to the Contract are constituted by the following documents, being understood that in the event of any conflict, these documents will be interpreted according to the order of precedence in which they are enumerated below:
- the specific provisions of the Contract, being understood that (i) when the Contract is formed by an Order issued by Buyer and accepted by Seller, the specific provisions of the acceptance form issued by Seller will take precedence over the specific provisions of the Order previously issued by Buyer; and (ii) any general document issued by Buyer, such as terms and conditions of purchase are excluded,
- the Quotation,
- these T&Cs.
Any variation of these conditions in any document held by Buyer is inapplicable unless accepted in writing by Seller. Should additional requests or information be issued subsequently by Buyer by sending new documents or by any change to the parameters which could directly or indirectly impact the content of the Order, Seller may automatically: (i) revise the Contract or, (ii) unilaterally decide to terminate it, should it be unable to overcome the new constraints, without prejudice to Seller’s rights as regards to the collection of amounts related to expenses already incurred.
Unless previously withdrawn, the Seller’s tender is open for acceptance within the period stated therein, or when no period is stated, within thirty (30) calendar days after the date of the tender.
4.1. Acceptance of the Seller’s Quotation must be accompanied with sufficient information to enable Seller to proceed with the Order forthwith; otherwise Seller will be at liberty to amend the quoted prices to cover any increase in costs which has taken place after acceptance. The Contract is finalized only after acceptance of Buyer’s Order by documented order confirmation and receipt of the full down payment (if applicable). A Quotation from Seller or the issuance of a deposit does not indicate any contractual commitment to the Order. Seller does not accept any liability as regards to compliance to norms or technical specifications not agreed in writing by Seller before acceptance of the Order.
4.2. Buyer must indemnify Seller against all damages, penalties, costs and expenses to which Buyer may become liable as a result of any commitments the Buyer has entered into regarding the Order.
5. BUYER’S SPECIFICATIONS
Buyer must indemnify the Seller against all damages, penalties, costs and expenses to which Seller may become liable as a result of work done in accordance with the Buyer’s specification which involve the infringement of any letters patent or registered design.
6. DRAWINGS, ETC.
6.1. Seller is only bound by quotations made by its employees and agents following express acceptance by the sending of an Order confirmation signed by a duly authorized legal representative of Seller. Drawings, descriptive matter, weights and dimensions submitted with Seller’s Quotation are intended to represent a general idea of the Goods and equipment described but are not necessarily correct in detail and none of these will form part of the Contract. Prior to proceeding with the Order, Seller may require written confirmation of specifications for customized Orders.
6.2. Seller is authorized, even after confirmation of the Order, to change and improve technical specifications of the Goods, to the condition it does not affect the performance and does not modify the price. The Offer can be revised or updated if the delivery schedule is postponed for reason under Seller’s control.
6.3 Instructions for use, as well as installation and connection diagrams are supplied to Buyer without any production diagram or drawing. Drafts, quotes and/or plans drawn-up by Seller only commit it under the express condition that the latter is responsible for the works.
7.1. The delivery time stated will commence when Seller receives Buyer’s written Order to proceed together with full information of the Buyer’s requirements and, if requested by the Seller, the Buyer’s deposit or down payment. Unless otherwise stated in the Order confirmation, delivery is deemed to have been effected by making the Goods available at Seller’s premises according to Incoterm® EXW Seller’s premises.
7.2. The delivery time stated is in good faith and every possible endeavor will be made to keep the given time, but failure to comply will not carry a penalty, unless specifically agreed otherwise in writing.
In case the delivery or completion time is firm and compulsory, in case of late delivery of the Goods or late performance of the Services, Buyer will be entitled to claim to Seller, and Seller’s liability will be limited to, the payment of liquidated damages being the exclusive and sole remedy and compensation for all costs, expenses and damages suffered or incurred by Buyer as a result of said delay. The liquidated damages will only apply in case of late delivery of the Goods and/or performance of the Services for a cause within Seller’s reasonable control, which excludes specifically and without limitation any act or omission of Buyer, and if such delay has caused genuine damage or loss that has been established by both parties. The liquidated damages will be point one percent (0.1%) of the price of the delayed Goods and/or Services per complete week of delay, and will not exceed five percent (5%) of such price. If within a thirty (30) calendar day period from delivery date of the Goods and/or performance of the Services, Buyer does not claim its rights to liquidated damages in a written notice by letter with acknowledgment of receipt, it will be deemed to have waived its rights. Such liquidated damages cannot be deducted from contractual payment and will be invoiced separately. The charging of liquidated damages for delay by Buyer is subject to its strict compliance with the payment due dates as a whole. Should Buyer fail to comply with these dates and without prejudice to Seller’s rights provided for herein, both parties mutually agree that the liquidated damages will be carried-over for the same number of days at the noted delay. This clause will apply as from settlement of the down payment until payment of the full balance of amounts owed by Buyer.
7.3. In all cases, whether a time for delivery or completion has been quoted or not, the time for delivery or completion will be extended by a reasonable period if delay in delivery or completion is caused by instruction from the Buyer, any delay of Buyer or any third party in the performance of prior works necessary for delivery or installation of the Goods, or by breakdown or accident or any cause whatsoever beyond the Seller’s reasonable control. Where the delivery, unloading, customs’ clearance or installation is delayed or refused for any reason outside Seller’s control, the Goods are handled, stored and as the case may be, insured at Buyer’s risks and expenses. In this case, the storage date will be deemed at the delivery and this will have no effect on the scheduled contractual payment due dates.
8. LOSS OR DAMAGE IN TRANSIT
8.1. Risks in the Goods are transferred to Buyer in accordance with applicable Incoterm®. In case Seller is in charge of risks transportation, in accordance with such Incoterm®, Seller will repair and/or at his option replace free of charge goods lost or damaged in transit provided that he is given written notification within sufficient time as will enable him to comply with the Carrier’s conditions.
8.2. Buyer will take out special ad valorem insurance to cover losses, damage and accidents that may be caused to the Goods and by any such Goods as from delivery until installation is completed and as long as the reservation of title clause is applicable.
9. OFF LOADING AND STORAGE
Unless otherwise specified in writing by the Seller, Seller shall not be responsible for offloading and storing.
10.1. The performances of the Goods as advertised by Seller are the ones expected to be achieved during testing in Seller’s factory.
10.2 When the Order confirmation has provided for installation of the Goods by Seller, Buyer is obliged to render the installation site accessible, by a practicable access route, and to effect connections and supplies of fluids and electricity as required for the facilities to operate. Should it fails to do so, Seller reserves the right to invoice the costs of all the resulting consequences to Buyer. In the absence of provisions to the contrary, in the Order confirmation, Buyer is responsible for meeting the various requirements of Seller or of an authorized third party, as regards appropriate handling equipment with a driver, the machinery required for assembly, the means of communications (fax, telephone, Internet access, etc.), and sanitary facilities and a room, which is able to be locked, in which to store the Goods and accessories required for the assembly. Seller reserves the right to refuse to act until the premises are accessible and rendered compliant, with the Buyer remaining itself liable for its obligations, and in particular for meeting payment due dates.
10.3 Where the Goods delivered to Buyer are intended to be installed in or with any item not supplied by Seller, the Buyer will remain solely responsible and liable for such installation and will keep Seller’s indemnified against and hereby waives definitively any claims resulting from damages caused by or suffered by said item and/or the Goods as a result of such installation.
10.4 Once installation is completed, Seller may carry-out tests prior to its commissioning. In this case, all necessary expenses in terms of energy and consumed products will be borne by Buyer. Said tests, and the commissioning of the Goods, as well as their acceptance, will be carried out during business days and hours, i.e. from Monday to Friday inclusive. Commissioning will take effect once Buyer is able to use the Goods for manufacturing purposes. 10.5 As regards any required setting and optimization work, Seller will have unhindered access to all or part of the installation during thirty (30) days following its commissioning. Throughout this period, Buyer may not invoke any priority obliging Seller to intervene on the basis of imperative times or days. In the event of a breach of this provision, Seller reserves the right to invoice all resulting costs and will be discharged from any liability in respect of the consequences of any postponed intervention owing to such a breach.
11.1. The implementation of an acceptance process, at Buyer’s request, requires a special agreement attached to the Order form, specifying the procedure for acceptance.
11.2. The acceptance report will be duly signed by a representative authorized for this purpose by Seller and by Buyer. The acceptance report states that acceptance has taken place, that it is given subject to certain reservations, or that Buyer refuses acceptance.
11.3. In the event of defects which do not prevent the Goods and facilities from functioning, Buyer cannot refuse to grant acceptance. In the event that serious defects are discovered, Seller shall take action in the best delays.
11.4. In all cases, final acceptance is deemed to have been given when the acceptance process or the industrial commissioning are unable to be implemented on the scheduled date for reasons not attributable to Seller and, in all cases, sixty (60) days following delivery, at the latest.
12. RISKS LINKED TO THE GOODS
12.1. Seller hereby informs Buyer that the Goods may cause the following injuries: cut (knife blades), burn (hot products), pinch (moving parts) and “blow out” (pressure from air).
12.2. Product contamination can occur because of cut O-rings.
13.1. Unless otherwise specified in writing by Seller, all prices quoted are EXW Seller’s warehouse. Where carriage, postage and special packaging are needed, Seller will add an extra charge.
13.2. Unless otherwise stated, the reference currency is the Canadian Dollar, which will be the invoice and payment currency.
13.3. Unless otherwise specified in the applicable Incoterm®, Seller will bear all taxes, fees, royalties, levies, duties and others charges of any nature, applicable or to become applicable in its own country for the performance of the Contract. Unless otherwise specified in the applicable Incoterm®, Buyer shall bear all taxes, fees, royalties, levies, duties, withholding taxes and others charges of any nature, applicable or to become applicable outside Seller’s country for the performance of the Contract.
14. TERMS OF PAYMENT
14.1. All Goods are sold for cash or cheque/check with Order unless agreed in writing by Seller.
For national Orders. In the absence of written special terms, the terms of payment will be as follows:
- forty percent (40%) exclusive of taxes plus VAT, down payment on Order signature,
- the balance, i.e. sixty percent (60%), exclusive of taxes plus VAT before delivery, upon goods being made available at Seller’s premises, against remittance of an invoice.
For export Orders. In the absence of written special terms, the terms of payment will be as follows:
- thirty percent (30%) exclusive of taxes plus VAT, down payment on Order signature, by wire transfer,
- the balance, i.e. seventy percent (70%), exclusive of taxes plus VAT before delivery, upon goods being made available at Seller’s premises, through a documentary credit irrevocable and confirmed by a first class bank in Seller’s country, without any charges for the beneficiary.
The documentary credit will be paid against presentation of the following documents:
- for the Goods: commercial invoice, forwarder’s certificate of receipt or airway bill or any other document providing delivery of the batch, and packing list;
- for Services: commercial invoice, and execution service certificate, if applicable.
Validity of the Order is submitted to validation and acceptance of the terms of documentary credit by Seller. Any payment will be received on Seller’s bank account within forty-five (45) days end of month after receipt of the invoice.
Should the Seller issue a down-payment return guarantee, it will be automatically released as from delivery under the applicable Incoterm®.
14.2. Buyer is responsible for any collection and legal costs related to collecting overdue accounts.
14.3. Compliance with the payment dates and times is of the essence of the Contract. Expiration of the due date for payment automatically constitutes formal notice. A penalty will be charged should payment not be made by the day following the payment due date indicated in the invoice, without prejudice to any other rights resulting from these T&Cs. These late payment interests will be two and a half percent (2.5%) per month. Seller will also be entitled to suspend the performance of the Contract, including to withhold future deliveries, until delinquent payments are made, being understood that Buyer will indemnify and reimburse Seller for any applicable additional storage charges together with any additional insurance charges.
Once accepted by Seller, an Order is not subject to cancellation by Buyer without Seller’s express written consent. Any such cancellation will be subject to a cancellation charge equal to thirty-five per cent (35%) of the initial quoted price, not as penalty, but as the reasonable estimate of the damages, which the Seller will suffer on account of the default of the Purchaser. Special Goods built to the Buyer’s specifications may not be canceled under any circumstances.
16.1. All returns require pre-authorization and a RMA (Return Material Authorization) number prior to returning any product. Please contact Customer Care at 1-604-940-2233 to obtain the RMA number. All equipment is subject to Unifiller inspection and will be credited based on the item’s condition. All return freight, duty, brokerage is the responsibility of the Buyer. Credit does not include freight, duty, brokerage or any other charges. If required, repairs to equipment will be made by Seller and any corresponding charges will be applied to the credit. Custom pieces of equipment cannot be returned for credit.
16.2. Buyer is responsible for presenting all proof of the anomalies or defects noted and for allowing Seller to carry-out any expert survey in presence of both parties. Seller is liable only to replace Goods that are non-compliant, without any further compensation. Products returns will be accepted only following Seller’s prior written agreement. The Goods will be returned to Seller’s premises solely, at Buyer’s risks and expenses, in perfect condition, in their original wrapping and packaging and will not have been dismantled or used.
17. LIMITED WARRANTY
17.1. Goods manufactured by Seller are warranted to the original Buyer only, against defects in material and workmanship for a period of eighteen (18) months from the date of delivery. This warranty covers defective parts only. The warranty is limited to replacement or repair by Seller of the defective Goods and to the delivery of the repaired or replacement Goods provided that the defect has been reported to Seller within fifteen (15) calendar days of its discovery, and the alleged defective Goods have been found effectively defective by Seller. Buyer will pay all shipping, labor and related expenses (including without limitation, travel, room and board expenses, if any, of the Seller’s personnel based on 8 hour workdays) in connection with any claim hereunder.
17.2. This warranty excludes: (a) electrical/electronic parts, (b) “O” rings and seals; (c) belts, (d) impellers; (e) improper installation and/or power supply by Buyer and (f) other expendable and normal replacement items, unless the defect is claimed within thirty (30) days from date of delivery and results from improper installation by Seller. This warranty does not apply to (i) consumable parts and normal wear and tear, (ii) defects arising from or connected with any non-compliance by Buyer to the conditions of use, storage and/or maintenance of the Goods, Goods destination, and connection guidelines, according to Contract specifications, and more generally, to the standard rules of use, storage and maintenance, (iii) if the Goods have been installed, dismantled, repaired, modified by Buyer or a third party without Seller’s prior written consent, (iv) in case of Buyer’s fault in surveillance or maintenance, (v) in case of accident.
17.3. Buyer is responsible for providing any evidence that the faults or defects noted actually exist. It will afford Seller of its staff every facility to establish such faults or defects. Any return of Goods will be subject of a formal agreement between Seller and Buyer. In case of warranty claim, Buyer will with a written prior notice of eight (8) days, return the alleged defective Goods in whole or in part, at its own costs and risks, in Seller’s facilities. The repaired or replacement Goods will be delivered by Seller FCA Seller’s facilities. In case of replacement, title to the defective Goods or defective parts will be transferred back to Seller and title to the replacement Goods or replacement parts will be transferred to Buyer simultaneously upon delivery. Seller will bear the costs of expertise, repair or replacement of the defective Goods or part under warranty.
17.4. If Buyer carries out the installation work and commissions the facilities itself, the warranty will be strictly limited to the Goods supplied, excluding any concept of performance and function.
17.5. Buyer acknowledges that Seller may not be the manufacturer of certain of the Goods and may not be the owner or dealer of certain of the Goods, but may merely be a broker of certain of the Goods and as such makes no warranties or representations either express or implied with respect to such Goods. Any original manufacturer’s warranties will be passed through to the Buyer to the extent the warranty is transferable.
17.6. The warranty obligations of Seller and the rights and remedies of Buyer in this clause are exclusive and in lieu of any other warranties, obligations, rights or remedies, whether express or implied, arising by law or otherwise with respect to any defects in or failures of the Goods. Buyer will defend, indemnify and hold harmless Seller from and against any claim or demand based on any cost, expense or damage caused by the defective Goods to the Buyer’s or any third party’s property. Buyer also waives and will make its insurers waive any claim, legal action or recourse against Seller and its insurers on such ground.
18. TITLE AND LIEN RIGHTS
18.1. The Goods will remain the property of Seller regardless of how they are affixed to the Buyer’s real property and Seller reserves a purchase money security interest in the Goods until the purchase price has been fully paid. Payment will only be deemed to have been made following collection of the full price and its incidentals, duly materialized by actual collection of the various payments on Seller’s bank account. Buyer agrees to execute any documents requested by Seller, which are necessary for attachment and perfection of its security interest. If the Buyer defaults, the Seller will have all the rights for a secured creditor under the Uniform Commercial Code as enacted in the State of Buyer’s corporate office or, at Seller’s option, in such other jurisdiction as the Goods are located.
18.2. Buyer will inform Seller of any attachment or of any other protective measure taken before payment in full by a third party regarding the Goods subject to reservation of title or of the institution of collective proceedings. Buyer will not pledge the Goods or provide it as collateral until payment in full. Buyer will take any action, before payment in full, to ensure that the Goods on its premises which is the property of Seller are identified. Buyer refrains from carrying out any conversion or modification of the Goods before payment of the price in full. In the event that the Goods are re-sold before payment in full, the re-sale price will be assigned to Seller, as collateral and Seller is permitted to claim the payment directly from Buyer.
18.3. Seller may assert its rights over the goods and keep the down payments made as a penalty clause in the event of Court-supervised reorganization or winding-up by decision of Court or in the event of voluntary winding-up.
Buyer will not disclose or use, in any manner whatsoever, all the confidential information Seller may have cause to provide to it in conversations and exchanges, or technical documents both prior to, and during performance of the Contract (the “Information”), other than those of an internal evaluation of the Quotation or, install, use, and/or maintain the Goods. Buyer undertakes to have this non-disclosure and confidentiality obligation both assumed and complied with by all the salaried staff or service providers who may be involved on its behalf pursuant to said discussions and exchanges. Buyer undertakes to protect and keep the Information secret during the whole performance of the Contract and for a further period of five (5) years after its expiry or termination. Buyer hereby acknowledges that failure to comply with these commitments and obligations will represent an intentional tort which may lead to the payment of damages to Seller.
20. INTELLECTUAL PROPERTY RIGHTS
The Information will remain Seller’s exclusive property along with all intellectual property rights attached thereto. Seller retains full ownership of all inventions, designs and processes produced or developed before or during (i) the preparation and negotiation of the Quotation as well as (ii) the course of performance of the Contract. For avoidance of doubt, unless otherwise agreed, Buyer will not make without limitation any of the following on the Goods: copy, reverse engineer, translate, modify, disassemble, publish, decode, improve, adapt.
21. LIABILITY LIMITATION.
21.1. In consideration of the express warranty and other terms herein contained, Seller will not be liable to Buyer its agents, employees, successors and assignees, for any indirect, incidental, consequential damages punitive or special damage, including without limitation, for for any losses, costs, damages, loss of revenue or profits, incurred or suffered by Buyer or any third party as a result of, or arising out, of loss of use of the Goods in all or in part or any failure of Seller in connection with the Contract. THE TOTAL AND CUMULATIVE LIABILITY OF SELLER, ARISING OUT OR IN CONNECTION WITH THE CONTRACT, WILL NEVER EXCEED THE CONTRACT PRICE(S) OF THE GOODS IN QUESTION OR TWO HUNDRED THOUSAND CANADIAN DOLLARS (200.000 CAD), WHICHEVER IS THE HIGHEST. Buyer waives any claims, legal action or recourse and will hold Seller and its insurers harmless from any claim, legal action or recourse that might be raised by its own insurers in excess of such amount. The foregoing will not affect the right of Buyer to claim for compensation against Seller with respect to direct damage that Buyer may suffer as a result of gross negligence or willful misconduct of Seller.
21.2. Any modification by Buyer of the Goods in question not agreed to in writing by Seller that affects the original specifications or operations agreed to by Buyer and Seller will abrogate any liability of damage on the part of Seller.
Quoted price does not include any applicable duties.
23. DELEGATION OF PERSONNEL
23.1. Buyer will render the installation and commissioning site compliant with the safety rules laid down by the Canadian law.
23.2. When delegating personnel to the other party’s premises to perform the Services, the parties will comply with the following provisions:
- Each party will, with the assistance of the other party, ensure that its employees comply with all administrative requirements, in accordance with applicable regulations and will bear all related costs;
- Each party will ensure that its personnel complies with all regulations and safety rules applicable at the relevant premises;
- The parties will agree on the working hours and working days of such employees in accordance with the regulations applicable to the relevant employees and at the relevant premises.
24. FORCE MAJEURE
24.1. If, as a result of a force majeure event, Seller were unable to perform any contractual obligation, in whole or in part, its obligations would be suspended and the time schedule of the Contract would be postponed for the period necessary to overcome the effects of the force majeure event. Will be considered as a force majeure event, any event of which causes are beyond Seller’s reasonable control and that prevents normal performance of its obligations, such as, but not limited to: gales, floods, earthquakes, fires, explosions, war (whether declared or not), epidemics, transport strike or any other transport stoppage for whatever reason, strike or lock-out within the Seller or affecting suppliers or sub-contractors, statutory or regulatory provisions leading to significant upheavals affecting supplies to the Seller or the manufacturing or installation of the Goods, delay from a subcontractor caused by an event of force majeure.
24.2. However, if the performance in whole or in part of any Seller’s obligation under the Contract is delayed by reason of force majeure for a period exceeding six (6) continuous months, each party may terminate the Contract or any part thereof as per clause; the parties then will try to establish by mutual agreement a liquidation settlement. Failure to reach such an agreement shall be deemed to be a dispute and settled as per clause.
Termination will not affect debts already payable between the parties at the termination date, in particular for the goods under production prior to the date of termination.
25.1 Each party can terminate the Contract in whole or in part by certified mail with acknowledgment of receipt in the sole following cases:
- material breach by the other party of one of its substantial obligations under the Contract, when such breach remains un-remedied for a period of two (2) months after formal notice to remedy by the non-defaulting party;
- without formal notice in case of declared bankruptcy or insolvency of the other party, or the filing of a petition in bankruptcy or insolvency of such other party, or any financial incapability of the other party to perform its obligations hereunder; or
- without formal notice in case of a force majeure event for a continuous period exceeding six (6) months.
25.2 Termination for Seller’s delay will not occur before the liquidated damages have reached their maximum amount as stipulated in clause.
25.3 Termination will not prevent or delay the payment of any sum due or to be due by either party, and will not affect either party’s right to legal proceedings as per clause.
26. APPLICABLE LAW AND SETTLEMENT OF DISPUTES
The Quotation and the Contract are governed and interpreted in accordance with the French law, to the exclusion of the Vienna Convention of 11 April 1980.
Any dispute arising out of or in relation with the Contract, which cannot be amicably settled within thirty (30) days after written notification of the dispute, will be finally settled by the competent court in British Columbia (Canada). At each of the above stated steps, the language to be used in the proceedings will be English.
Terms and Conditions Revised November 14, 2019