1. Complete Agreement - This Sales Order (the "Order") contains all of the terms of the purchase and sale between Digican Motion Controls, Inc. (the "Seller") and the Purchaser and supersedes all prior correspondence, negotiations, discussions, representations and offers between them to the extent that they conflict or are in addition to the terms contained herein and no course of dealing or usage of trade shall be applicable unless expressly referred to herein. This Order is intended as a final expression and complete and exclusive statement of the terms of the agreement between Seller and Purchaser and may be amended only by a writing signed by each of them. ACCEPTANCE BY PURCHASER OF THE OFFER CONTAINED IN THIS ORDER IS EXPRESSLY LIMITED TO THE EXACT TERMS AND CONDITIONS CONTAINED HEREIN. ANY TERMS AND CONDITIONS SET FORTH IN ANY PURCHASE ORDER OR OTHER DOCUMENT PROVIDED BY PURCHASER TO SELLER WHICH DIFFER FROM, CONFLICT WITH OR ARE NOT INCLUDED IN THESE TERMS AND CONDITIONS SHALL NOT BECOME A PART OF ANY AGREEMENT BETWEEN PURCHASER AND SELLER UNLESS SUCH TERMS AND CONDITIONS ARE SPECIFICALLY ACCEPTED BY SELLER IN WRITING. ACCEPTANCE OF PRODUCT CONSTITUTES ASSENT TO THE TERMS AND CONDITIONS OF SALE STATED HEREIN.
2. Prices - Seller may change at any time without notice all prices published by Seller or quoted by its representatives. Written quotations expire automatically 30 days from the date issued and are subject to change or termination by notice from Seller during that period. All prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other terms and conditions, which are not part of the original price quotation. Prices are exclusive of all excise, sales, use and other taxes imposed by any federal, provincial, municipal or other government authority, all of which taxes shall be paid by Purchaser. Quotations may also be subject to change at the discretion of the Seller to reflect changes in customs duty rulings, tax status, exchange rate fluctuations, etc. Purchaser is responsible for obtaining and providing to Seller any certificate of exemption or similar document required to exempt any sale from sales, use or similar tax liability. All prices shall be as specified by Seller, or if no price has been specified, shall be Seller's price in effect at the time of delivery.
3. Terms of Payment - Credit is offered to approved credit applicants only. Credit approval is subject to the discretion of the Seller. All first-time purchases by the Purchaser are subject to a COD first order shipment policy. Unless otherwise expressly stated in writing, terms are net cash 30 days from the date of invoice.Seller reserves the right at any time to require full or partial payment in advance, or to revoke any credit previously extended, if, in its sole judgment, Purchaser's financial condition does not warrant proceeding on the terms specified. Overdue payments shall be subject to finance charges computed at a periodic rate (to the extent permitted by law) of 1 1/2 % per month (18% per year). Amounts owed by Purchaser with respect to which there is no dispute shall be paid without set-off for any amounts which Purchaser may claim are owed by Seller and regardless of any other controversies which may exist. A 2 % discount is offered if payment is made within 10 days of invoice. Should legal action be instituted to recover any sum due from the Purchaser, the Seller shall be entitled to recover costs of such action including attorneys fees and judicial court costs.
4. Delivery - Unless otherwise specified, all sales are F.O.B. Seller's premises in Montreal, Quebec and the time of delivery shall be the time when the product is ready for pickup at that location by Purchaser or by a carrier for delivery to Purchaser. Seller reserves the right to make delivery in installments. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Purchaser of its obligations to accept remaining deliveries. Without in any way limiting the generality of paragraph 11, Seller shall not be liable for any loss or damage resulting from any delay or failure to deliver which is due to any cause beyond its control, including, without limitation, acts of nature, unavailability of supplies or sources or energy, riots, wars, fires, floods, epidemics, lockouts, strikes, and slowdowns, delays in delivery by its suppliers, or acts or omissions of Purchaser. If, as a result of any such cause, any scheduled delivery is delayed, Seller may, at its option, by written notice to Purchaser, cancel that and all future deliveries without further liability or obligation of any kind. Products on which delivery is delayed due to any cause within Purchaser's control may be placed in storage by Seller at Purchaser's risk and for its account. Purchaser shall be liable for all costs and expenses incurred by Seller in holding or storing products for Purchaser or at Purchaser's request.
5. Shipment - Unless specific instructions to the contrary are supplied by Purchaser, methods and routes of shipment will be selected by Seller, but Seller will not assume any liability in connection with shipment nor constitute any carrier as its agent. All shipments will be insured at Purchaser's expense and made at Purchaser's risk, and Purchaser shall be responsible for making all claims with carriers, insurers, warehousemen and others for mis-delivery, non-delivery, loss, damage or delay.
6. Title and Risk of Loss - Subject to paragraph 7 and to Seller's right to stop delivery of products in transit, title to and risk of loss for products shall pass to Purchaser upon the earlier delivery to Purchaser or to a carrier for shipment to Purchaser.
7. Security Interest - Seller reserves and Purchaser grants to Seller a security interest in all products sold and all proceeds to secure the full payment and performance by Purchaser of its liabilities and obligations to Seller. Purchaser acknowledges that this document or copies of this document may be filed with the appropriate authorities as a financing statement and agrees to execute and deliver such documents as Seller may request in order to perfect its security interest.
8. Cancellations and Returns - Purchaser may not cancel this Order except upon the written consent of Seller and upon terms that will fully indemnify Seller against loss. Products shall not be returned to Seller without its prior written authorization. In the event the Seller agrees to accept the return, the Purchaser shall pay a restocking charge equal to a minimum of 30% of the order, or higher in the discretion of the Seller, plus all transportation costs incurred by the Seller as a result of the return.
9. Installation - Unless otherwise specified, Seller assumes no obligation to install any products sold or to place them in working order at Purchaser's premises.
10. Specifications - All products are subject to Seller's standard tolerances for specifications, except where specific tolerances are agreed to in writing at the time of order. Seller reserves the right to make substitutions and modifications in the specifications of any products provided that such substitutions or modifications do not materially affect the performance of the products or the purposes for which they can be used, or modify any custom specifications agreed to in writing at the time of order. All engineering data, design information, engineering and shop drawings used in the completion of this order are the property of the Seller.
11. Claims - All claims for nonconforming or defective products must be made in writing within 10 days after delivery to Purchaser, and any claims not made within that period shall be deemed waived and released. Seller's sole responsibility with respect to such claims shall be, at its option, to credit or replace any product or component, which Seller determines to be defective. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES DUE TO ANY CAUSE WHATSOEVER EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO SUIT OR ACTION SHALL BE BROUGHT AGAINST SELLER FOR MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS OCCURRED. THE FOREGOING CONSTITUTES SELLER'S SOLE LIABILITY AND PURCHASER'S SOLE REMEDY WITH RESPECT TO PRODUCTS SOLD BY SELLER. EXCEPT AS THUS PROVIDED, SELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
12. Patents - Seller assumes no obligation or liability of any kind with respect to infringements or alleged infringements of Canada, United States or foreign patents, copyrights, trademarks or other proprietary rights arising out of a purchaser's purchase, use, possession, sale or delivery of any products sold hereunder. Purchaser shall indemnify and hold Seller harmless from any and all claims, liabilities, damages or expenses resulting from infringements or alleged infringements of Canada, United States or foreign patents, copyrights, trademarks or other proprietary rights arising from compliance by Seller with any designs or specifications provided by Purchaser. No sale of any product shall be construed as granting Purchaser any license or other right in or to any patent, copyright, trademark or other proprietary right applicable to the product.
13. Life Support Applications - IF PURCHASER USES SELLER'S PRODUCTS IN LIFE SUPPORTING APPLICATIONS, WHERE DEVICES, SYSTEMS OR MALFUNCTIONS OF SUCH PRODUCTS CAN REASONABLY BE EXPECTED TO RESULT IN PERSONAL INJURY, THEN (A) IT DOES SO AT ITS OWN RISK AND (B) IT AGREES TO FULLY INDEMNIFY SELLER FOR ANY DAMAGES RESULTING IN SUCH IMPROPER USE OR SALE.
14. Miscellaneous - This Order shall be governed by the laws of the Province of Quebec. The headings herein are for purposes of reference only and shall not limit or otherwise affect the meaning hereof. In case any provision herein shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. A waiver by Seller of any of the terms and conditions of this Order shall not be deemed to be a continuing waiver but shall apply solely to the instance of the waiver.
15. Approval - This Order is subject to approval by the Seller at its home office in Montreal, Quebec.
16. Assignment - The Purchaser shall not delegate any duties nor assign any rights or claims under this Order without Seller's prior written consent, and any such attempt at delegation or assignment shall be void.
17. Compliance with Laws - The Purchaser shall carry out the transactions contemplated by this sale and shall otherwise deal with the products sold in conformity with all applicable laws, rules, and regulations of all governmental authorities, including, without limitation, the Canada Customs and Excise Act, and shall obtain all permits and licenses required in connection with the purchase, installation, sale, shipment or use of any of the products