AVESTIN INC. TERMS AND CONDITIONS OF SALE

 

1.  Acceptance. The terms and conditions herein contained and any additional “Supplement to Sales Agreement” shall constitute the only agreement between the Seller and the Buyer.  Any terms and conditions originating with the Buyer are hereby expressly rejected and shall not become part of the contract between the Buyer and the Seller unless specifically accepted in writing by a duly authorized officer of the Seller. The Seller’s quotation is made subject to prior sales to third parties.  In any event, said quotation will become void if not accepted by the Buyer within 30 days from the date of the offer. Seller reserves the right to hold shipment of telephone or oral orders until written confirmation has been received from Buyer.  Buyer assumes full responsibility for inaccurate or incomplete date supplied on special orders.

 

2.  Prices. All prices are subject to change without notice at any time and are based in part on the applicability of Sales Agreement set forth herein.  Should the Buyer desire other or different terms, the prices may be adjusted accordingly.  Prices are those in effect at the time the order is received at Avestin, Inc., Ottawa, Ontario, Canada.  Prices for any Avestin Product, including shipping charges, if applicable, are outlined on a quotation prepared by the Seller.  If Buyer should delay shipment beyond original contact date, the prices charged will be those in effect at the time the shipment is made.  Seller reserves the right to cancel Buyer’s order in the event that (a) any government price regulation, schedule or ceiling prescribes a price lower than Seller’s price as established in the order acknowledgment or in any way prevents Seller from purchasing or otherwise acquiring any commodity or service necessary to the performance of the order, or in any way prevents Seller from adjusting its prices when the cost of any such commodity or service is increased, and (b), in the event any major change in economic conditions renders Seller’s performance unprofitable.

 

3.  Taxes/Duty. Prices do not include any sales, use, excise, property or other such taxes, or duties, that may be levied on the transaction by local, provincial, federal or foreign governments.  Any taxes/duties Seller is required to collect from the Buyer will be added to the invoice or billed separately to the Buyer.

 

4.  Terms of Payment. Unless otherwise specified in the Seller’s quotation, the terms of payment will be net cash 30 days from date of shipment, subject to credit approval by Seller’s credit department.  Payment terms that have been negotiated between Seller and Buyer will be outlined on the quotation prepared by the Seller.  In cases where shipment of a completed product is delayed at the request of the Buyer, Seller reserves right to issue invoice for the product as of the date it becomes ready for shipment.  Late charges at the rate of 2% per month (24% annually) may be charged on past due accounts.  Choice of currency of payment will be outlined on the quotation prepared by the Seller.

 

5.  Production and Performance Estimates. Any projected production figures and performance data are estimates based on Seller’s understanding of routinely available facilities, operator skill, and other specified factors affecting production, and do not constitute a guarantee of production.  The Seller makes no claims concerning the suitability of its products with regard to the Buyer's current or future requirements.  It is the sole responsibility of the Buyer to evaluate the product to the Buyer's satisfaction under actual service conditions prior to product purchase.

 

6.  Warning. The Seller’s equipment is capable of producing very high fluid pressures.  It is the Buyer’s responsibility to train its operators to use the Seller’s equipment safely.

 

7.  Delivery. The quoted delivery dates are approximate and a more specific date will be established upon the Seller’s acceptance of Buyer’s order.  Delivery dates are subject to revision at any time due to causes beyond the Seller’s control.  These would include, but not be limited to, delay in receipt of Purchaser’s signed order or complete specifications, fire, shortages of material, transportation delays, strikes, failure of suppliers or subcontractors to meet delivery schedules, war, riots, and any action by or prior system imposed by authority of any government agency.  Any delay or nondelivery caused by the foregoing shall not result in liability for the Seller.  Delivery to a common carrier or licensed tracker shall constitute tender of delivery to the Buyer and all risk of loss or damage in transit shall be borne by the Buyer from the time the Product leaves the Seller's premises. From this time on, the Buyer must pay the purchase price notwithstanding the loss of the goods. In no event shall the Seller be held liable for damages or contingent expenses caused by delays in delivery. Seller reserves the right to stoppage in transit and to repossess equipment notwithstanding delivery to the carrier, until payment in full has been made to Seller. Buyer, by acceptance of the products, grants a security interest to Seller in such products until paid in full together with all of the rights and remedies of a secured party under the Personal Property Security Act or other similar legislation. No claim relating to quantity, condition, loss or damage to the goods made by Buyer will be accepted by Seller after thirty (30) days after date of shipment.

 

8.  Warranty, Disclaimer, Limitation of Liability and Remedy. Seller warrants to the original Buyer only that Product manufactured by the Seller and sold directly by the Seller or through an authorized representative and used by the original Buyer within limits of rated and normal usage will be free from defects which are not commercially acceptable in material and workmanship for a period of one year from date of shipment, or 500 operating hours, whichever comes first. This warranty does not include parts subject to wear and tear nor failures caused by lack of proper maintenance, incompatible fluids, foreign materials in air and/or fluid media, or application of pressures beyond published values. Seller's obligation and liability with respect to components not manufactured by the Seller shall be limited to the extent of express warranties received by Seller from such component manufacturers. This warranty is void and of no effect and Seller shall not be liable for any breach of warranty, express or implied, if the equipment or any part or component thereof shall have been repaired or altered by persons other than the Seller unless expressly authorized in writing by Seller, or if the equipment is operated or installed contrary to Seller's instruction or subjected to misuse, negligence or accident. Written notice of any claimed defect within the warranty period must be presented to the Seller immediately upon Buyer's discovery of the defect. Seller shall have the option to inspect any parts claimed to be defective either at the Buyer's place of business or at the Seller's place of manufacture while the product is in the claimed defective condition. No return shall be accepted unless Seller has had an opportunity to inspect the equipment or has expressly authorized the return. Operation of the product must be suspended until written clearance is issued for continued operation provided that Seller upon receipt of written notice of a claimed defect will proceed without unreasonable delay to remedy any defect coming within the warranty which is found to exist. During the warranty period, parts found to be defective by Seller's inspection will be furnished free of charge. There are no other warranties that extend beyond the warranty herein contained.  The warranty stated herein is in lieu of all other warranties express or implied, including but not limited to any implied warranty of merchantability or fitness for a particular purpose and is in lieu of any and all other obligations or liabilities on Seller's part. No statement, oral or written, inconsistent with this warranty is binding on the Seller. No agent, employee or representative of the Seller, other than an officer, duly authorized, has any authority to bind the Seller to any confirmation, representation or warranty concerning the Seller's product beyond that specifically included in the confirmation, representation or warranty concerning the Seller's product beyond that specifically included in the warranty contained herein. Under no circumstances will the Seller be liable for any incidental or consequential damage or expense of any kind, including but not limited to personal injuries and loss of profits, arising in connection with any contract or with the use, abuse, unsafe use or inability to use Seller's products. Seller's maximum liability shall not exceed, and Buyer's remedy is limited to either (a) repair or replacement of the defective part or product or at the Seller's option, (b) return of the product and refund of the purchase price; and such remedy shall be the Buyer's entire and exclusive remedy. The sole purpose of the stipulated exclusive remedy shall be to provide the Buyer with free repair or replacement of defective products, or refund of the purchase price at the Seller's option, in the manner provided herein. This exclusive remedy shall not be deemed to have failed of its essential purpose so long as Seller is willing and able to repair or replace defective products, or to refund the purchase price, in the prescribed manner.

 

9.  Indemnification. Buyer agrees to indemnify and hold Seller harmless from any and all liability, loss or damages which Seller may suffer as a result of claims, demands, costs or judgments made against Seller arising out of any use whatsoever of the machinery and equipment sold pursuant to this Agreement, which liability, loss or damages, claims, demands or judgments are based upon or result from (a) any alteration or modification of the machinery or equipment by Buyer, Buyer's officers, agents or employees; or (b) the failure of Buyer, Buyer's officers, agents or employees to follow manufacturer's instructions, warnings or recommendations which are communicated by Seller to Buyer in any form before, during or after the time of this sale; or (c) the failure of Buyer, Buyer's officers, agents or employees to comply with federal, state, or local laws or regulations applicable to the use of such machinery or equipment; or (d) the failure of Buyer, Buyer's officers, agents or employees to properly train and instruct anyone using such machinery or equipment.

 

10.  Repair and Service - Non-Warranty. The cost of all servicing of equipment not provided for in preceding sections may be charged for by the Seller at a per diem rate per man per workday plus transportation and living expenses.

 

11.  Property Rights. Seller retains for itself any and all property rights in and to all designs, engineering details and other data pertaining to any equipment designed in connection herewith and to all rights of discovery, invention or patent rights arising out of work done for Buyer. The Buyer expressly agrees that it will not assert any property rights therein, except the rights for itself and subsequent owners to use the equipment. Any prints, brochures, drawings or other information furnished to the Buyer by the Seller are intended solely for the confidential use by the Buyer and shall remain the property of the Seller, and shall not be used to the detriment of the Seller's competitive position.

 

12.  Patent Indemnity. If any product furnished by the Seller is rightfully claimed to infringe any Canadian or United States Patent issued at the time Buyer's order is accepted, Seller agrees at its option; (1) to procure for the Buyer the right to use the product, or (2) to modify or replace the product so as to avoid infringement, or (3) to accept redelivery of the product and reimburse Buyer for the purchase price and any transportation expenses incurred by Buyer. Should any litigation be instituted against Buyer based on a claim that any product in the condition received from Seller infringes any Canadian or United States patent, Seller will undertake the defense thereof in Buyer’s behalf and pay any damages and costs awarded therein against Buyer, provided Seller is given prompt written notice and is furnished with copies of all demands, process and pleadings, and Buyer cooperates fully in giving Seller authority, information and assistance at Seller's expense for such defense, as well as control over the defense and any negotiations with regard to settlement. The foregoing represents Seller's entire and exclusive obligation with respect to any charge of patent infringement and is in lieu of any statutory warranty relating to infringement.  Seller shall have no responsibility insofar as any product is modified by Buyer or is made or modified by Seller in accordance with Buyer's order and Buyer shall indemnify Seller in accordance with the indemnity in paragraph "15" above for any claim which arises out of Seller's compliance with Buyer's specifications.  Seller shall also have no responsibility with regard to any settlement, admission or promise made by Buyer without Seller's prior written consent, nor shall Seller be liable for any indirect, special or consequential damages of any nature whatsoever, including loss of profits, claimed to have been sustained by Buyer or any user of the product arising out of any claim of infringement.  Seller is not responsible for the infringement of any Patent resulting from the Buyer's use of any of the Seller's products. Seller is entitled to indemnity from certain of its suppliers and the rights and options vested in Seller shall extend to such suppliers and may be exercised by them.

 

13.  Reservation of Rights. Seller reserves the right to make subsequent improvements and changes in design in its products without imposing any obligation to make such changes or improvements upon products sold to the Buyer.

 

14.  Limitation of Action. Any action for breach of Seller's warranty must be commenced within twelve (12) months from the time the cause of action accrues unless the period for action shall be extended by Seller in writing. In the interpretation of this limitation of action for breach of Seller's warranty it is expressly agreed that there are no warranties of future performance of the equipment that would extend the period of limitation herein contained for bringing an action.  It is expressly understood that any effort by Buyer, Seller or agents to repair any product shall not extend the twelve (12) month period of limitation unless Seller agrees in writing. The warranty set forth in paragraph "10" applies to replacement parts as well as equipment originally sold, and nothing except Seller's written consent shall extend its obligation more than the period specified in paragraph "9".

 

15.  Installation Costs. All costs incident to installation or erection or both of any product shall be borne solely by Buyer.

 

16.  Authority. All parties executing this agreement on behalf of a corporation hereby affirm that they have the authority to bind their respective corporations, as required, and that all necessary resolutions and by-laws have been passed allowing such authority to be legally binding.

 

17.  Interpretation. This Agreement and any contract resulting from this Agreement is subject to and shall be construed in accordance with the laws of the Province of Ontario, Canada.  The parties agree that this Agreement and any contract resulting therefrom is formed in the Province of Ontario.

 

18.  Jurisdiction. The parties hereby agree that any legal action or dispute arising from this Agreement or resulting contract shall be commenced in the Province of Ontario, which shall have exclusive jurisdiction.  No court other than that of the Province of Ontario shall have any jurisdiction in relation thereto, and this Agreement shall be construed without giving effect to the principles of conflict of laws.  The place of Court is Ottawa, Ontario.

 

19.  Execution in Parts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument having full binding legal effect.