Reliaguard Inc. (“Seller”) hereby agrees to sell to you (“Buyer”), and Buyer hereby agrees to purchase, the goods and\or services (collectively referred to as the “Goods”) described in the attached quote or Buyer’s Purchase Order, if attached and signed by Seller, (either the “Order”) under these terms and conditions and in consideration of the mutual covenants herein contained, and other good and valuable consideration. “Party” means either Buyer or Seller and “Parties” means both Buyer and Seller. “Agreement” means these Terms and Conditions of Sale and any Orders, which are hereby incorporated into these Terms and Conditions by this reference. In the event of a conflict between documents, the conflict shall be resolved according to the following descending order of precedence: these Terms and Conditions of Sale, any quote, and any Buyer’s Purchase Order. Further, where a Buyer issues a purchase order or other initiating document, which contains its own terms and conditions which differ from the Seller’s terms and conditions contained herein, the terms and conditions contained herein, provided by the Seller shall prevail.
Buyer’s execution of the Order or taking delivery of any part of the Goods shall constitute acceptance of these terms and conditions contained herein. Seller expressly rejects any terms and conditions submitted by Buyer that are inconsistent with or in addition to these terms and conditions, and such added or inconsistent terms shall have no force or effect. Seller’s agreement to provide the Goods is expressly conditioned upon Buyer’s acceptance of these terms and conditions. No waiver or alteration of, or addition to these terms and conditions shall be binding unless expressly agreed to in writing by an officer of Seller.
The terms of payment are cash in United States dollars within 30 days of delivery to the Buyer. If applicable, delivery shall be Ex Works (EXW) Seller’s premises (as defined by INCOTERMS 2010). Seller will arrange for delivery of Goods, but all risk of loss and transportation, loading and delivery expenses shall be borne by Buyer. Title to Goods shall not pass until Seller receives payment in full. All prices are exclusive of any federal, state, provincial, local or foreign taxes, duties or fees, including but not limited to Goods and Services Tax, or use or sales taxes which may now be or hereafter become applicable to this transaction, the Goods or to any services performed in connection therewith and all such taxes and fees shall be for Buyer’s account. If any tax exemption certificate provided by Buyer to Seller is not recognized by the taxing authority involved, Buyer will promptly reimburse Seller for any taxes, interest, fines and penalties that Seller is required to pay.
Cancellation and Exchange Policy
The Order may not be cancelled. Buyer may not reject Goods which substantially conform to the Order or which conform to the limited warranty below. Buyer may not reject Goods after the installation of such Goods. Buyer’s rights and remedies for any non-conformity of Goods after acceptance shall be limited to Seller’s warranty set out herein and subject to all limitations described herein. If the Goods, or any part thereof, are not in conformance with the limited warrant set out herein, such Goods may be returned to Seller. Seller’s sole responsibility upon receipt of nonconforming Goods shall be to either repair or replace, at its option, any such parts that fail to conform to the Order so that the end product substantially conforms to the specifications on the Order. Such parts or repairs shall be provided or performed at no cost to Buyer, at Seller’s facility and during regular working hours. Seller shall not have any liability or responsibility with respect to component parts or accessories not manufactured by Seller or to normal maintenance work, maintenance parts or normal wear and tear. Seller shall not have any liability or responsibility with respect any transportation charges, cost of installation, duty, taxes or any other charges whatsoever arising from non-conformity of Goods.
Limited Warranty of Goods
Seller warrants parts manufactured by it to meet their published specifications as at the date of shipment and be free from material defects in material and workmanship for a period of one (1) year from date of delivery. Except as expressly provided in this paragraph, the Goods are provided on an “as is” basis.
The warranties contained herein do not apply (i) to repairs or replacements required because of accident, misuse, neglect, failure to install, use or maintain in accordance with manufacturer specifications, abnormal working conditions (effects of excessive electrical current or voltage, whether or not caused by lightning) or causes other than ordinary use, (ii) to any portion of the Goods modified by or on behalf of Buyer, (iii) where manufacturer serial numbers or warranty decals have been removed or altered, (iv) where Seller performed as directed by Buyer, its agents or representatives and the warranty matter arises as a result of Seller’s compliance with those directions, (v) to any goods or materials which are not supplied by Seller hereunder, or (vi) to the overall operations of any system(s) in which Goods constitute a component.
The warranties contained herein do not apply to products or component parts thereof that become warped or malformed as a result of improper storage, including without limitation (i) failure to store the product in its original and proper form; (ii) improper re-packing of the product in the original shipping container; and (iii) outdoor storage of the product in any manner.
Limitation of Liability
The remedies of Buyer set forth herein are exclusive and in lieu of any other rights or remedies available to Buyer at law, in equity or otherwise. The total liability of Seller with respect to this Agreement and the Goods and services furnished hereunder, and in connection with the performance or breach thereof, and from the manufacture, sale, delivery, installation, repair, replacement or technical direction or services covered by or furnished under this Agreement, whether based on contract, warranty, tort, negligence, indemnity, strict liability or otherwise, shall not exceed the purchase price of the Goods or services upon which such liability is based.
Disclaimer of Non-Express Warranties
EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, SELLER DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS ON THE GOODS AND SERVICES FURNISHED HEREUNDER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BUYER ACKNOWLEDGES AND ACCEPTS THAT THE STATED REMEDY WITH RESPECT TO THE EXPRESS WARRANTIES UNDER THIS AGREEENT ARE ITS SOLE REMEDY WITH RESPECT TO THE GOODS SOLD AND SERVICES PROVIDED HEREUNDER. SELLER AND MANUFACTURERS OF COMPONENTS OF THE GOODS SHALL IN NO EVENT BE LIABLE TO BUYER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, LOSS OR PROFITS OR REVENUES OR OTHER ECONOMIC LOSSES ARISING OUT OF THIS AGREEMENT OR ANY BREACH HEREOF, INCLUDING BUT NOT LIMITED TO DAMAGES FOR ANY DEFECT IN, OR FAILURE OF, OR MALFUNCTION OF THE GOODS SOLD OR SERVICES SUPPLIED HEREUNDER, WHETHER OR NOT SUCH LOSS OR DAMAGE IS BASED ON CONTRACT, WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHERWISE.
Future product specifications and availability may vary. Seller reserves the right to make changes at any time to product design, specifications, and availability, without notice.
Patent and Trademarks
Reliaguard, GreenEEL and GreyEEL are registered and common law trademarks of Seller and may not be used without the express written permission of Seller. All use of such trademarks shall enure to the exclusive benefit of the Seller.
Buyer shall defend, will indemnify and save Seller harmless from all losses, costs, damages and expenses whatsoever, including, without limitation, losses, costs, damages and expenses that are special, indirect or consequential, however caused or arising from loss of profits, actions, causes of action, proceedings, claims, demands whatsoever which may be brought or made against Seller or which Seller may pay or incur as a result of or arising directly or indirectly out of or in connection with the use or resale of the Goods by Buyer.
The Goods are solely for the mitigation of power outages caused by animals or birds. They are not to be used for prevention of injury or death from contact with an energized source or equipment, and Buyer shall defend and indemnify Seller from any claims arising from any such use.
Seller may terminate this Agreement if Buyer defaults in its obligations to make payments pursuant to this Agreement. The termination will be effective on the date that a notice of termination is delivered or faxed to Buyer by Seller. This Agreement will immediately terminate on the bankruptcy, insolvency, winding-up or liquidation of Seller or Buyer.
Seller will not be liable for delay in or non-performance of the Agreement or any part thereof, resulting directly or indirectly from: (1) an act of God, including epidemics, earthquakes, storms, fires, flood, lightning; (2) an act of a public enemy; (3) an act of terrorism; (4) an act of any governmental authority, domestic or foreign, including but not limited to war, declared or undeclared, priorities, quarantines, embargoes, licensing controls or distribution restrictions; (5) accidents and disruptions including but not limited to explosions, breakdowns of essential machinery or equipment and power shortages; (6) transportation or storage delays, accidents or shortages; (7) labor difficulties including but not limited to strikes, slowdowns, lockouts, sabotage and labor shortages; (8) failure or delay in its source of supply; (9) acts or omissions of Buyer, its directors, employees, agents and independent contractors; or any other cause beyond Seller’s reasonable control, whether similar or dissimilar to those listed in this paragraph.
This Agreement is governed by and will be construed in accordance with the laws of the State of Delaware, USA excluding its conflicts of laws, rule or principals which might refer such construction to the laws of another jurisdiction. Notwithstanding the foregoing, any disputes regarding defective materials, the laws of the State where the materials were delivered to Buyer will apply.