Purchase and Sale Agreement: This quotation constitutes an offer on the part of Nordstrong Equipment Limited (“NEL”), upon the terms and conditions outlined on the front and back of this quotation and attached hereto to sell the person specified herein (“Buyer”) the products, goods, equipment and parts relating thereto which are specified herein (“Equipment”) which, upon acceptance by Buyer, shall constitute a binding agreement. Buyer shall be deemed to have accepted all and only the terms and conditions outlined on the front a back of this quotation if it orders some or all of the Equipment. Any additional or different terms in the Buyer’s forms or other documents are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given. No modification of NEL’s terms and conditions will be binding on NEL unless agreed to in writing by NEL
Pricing: Prices are FCA NEL plant or warehouse or other point of origin. Buyer will pay in addition to the stated price, all charges for transportation, freight drayage and rigging of the Equipment and all taxes howsoever designated, levied or based on the purchase price of the Equipment or its use, including federal, state, provincial and local, excise, sales, use, privilege or personal property taxes, or taxes based on gross revenue and any taxes or amounts in lieu thereof paid or payable by NEL in respect of the foregoing, excluding taxes based on NEL’s income. NEL reserves the right to change prices without notice. All orders shall be subject to the price in effect at the time of shipment, or until a firm order has been received and accepted by NEL. Any clerical errors are subject to correction.
Terms of Payment: Unless otherwise specified, terms of payment are net 30 days from NEL’s dated invoice. If Buyer fails to make payments when due and such failure continues for 30 days, NEL may charge Buyer interest on the overdue amounts including all amounts due pursuant to this clause from the date such amount became due at the rate of the lesser of 1.5% per month (18% per annum) or the maximum interest rate permitted by applicable law.
Risks: All risks regarding the Equipment including without limitation, risk of loss, theft, damage or destruction, shall pass to Buyer upon delivery to a carrier. The carrier shall be the agent of Buyer. Buyer shall inspect items / equipment supplied within 48 hours of receipt of such products by Buyer. If no such inspection is made by Buyer, Buyer will be deemed to have accepted the products.
Manner of Transportation: Unless otherwise specified by Buyer, NEL may ship in any manner convenient to NEL.
Delivery Date: The delivery date quoted by NEL is its best estimate and is based upon the conditions in its works at the time of quotation, and therefore such date shall be interpreted as being estimated and in no event shall time be of the essence regarding such date. In addition, changes to the Equipment or in engineering will naturally affect the delivery date.
Delay by Buyer: Buyer may not delay delivery of the Equipment without NEL’s consent and Buyer agrees to pay all costs including any storage expenses such delay imposes on NEL. If delivery of the Equipment is delayed by Buyer without NEL’s consent, payments in full of the purchase price for such Equipment shall become due when Buyer is notified that such Equipment is ready for delivery and the Equipment shall thereafter be held at Buyer’s risk. In the event Buyer elects to require NEL to accelerate its efforts in order to avoid an extension of the Schedule, NEL's exclusive remedy therefore shall be the reimbursement of the premium portion of any overtime required to be paid by Buyer, plus 15% of the premium portion of such overtime expense to cover all other impacts to NEL caused by the Schedule acceleration.
Intervening Events: NEL shall not be liable for delay or failure in performance resulting from acts beyond the control of NEL, including but not limited to, strikes, or labour or industrial disturbances, civil disturbances, acts, orders, legislation, regulations or directives of any governmental or other public authorities, acts of public enemies, riots, sabotage, epidemics, pandemics, blockages, embargoes, shortages of labour, materials and suppliers, delays of suppliers, lightning, earthquakes, fire, storms, hurricanes, floods, washouts, explosions and acts of God.
Set-Offs: Buyer will not have the right to claim compensation or to set-off against any amounts which become payable to NEL herein or otherwise.
Warranty: NEL will warrant to Buyer and its successors and assigns that the goods and any services covered by this Purchase Order shall conform with the description on the face of the Purchase Order, to all applicable samples, drawings and specifications, and will be of sufficient size and capacity and of proper materials to fulfill the operating conditions as they are provided and specified from the Buyer to NEL, and subject to any technical exceptions taken by NEL. The Goods shall be free of all defects in design, manufacture and materials and shall be new and of good quality, shall be furnished and performed in a proper and workmanlike manner. The Goods manufactured by NEL are warranted to be free of defects in materials and workmanship under normal use and when properly assembled, installed and maintained for a period that shall be the shorter of 12 months after start-up or 18 months after the date of receipt at the specified delivery point. Without restricting any remedy of the Buyer for NEL's breach of any term or condition hereon, Buyer may require NEL to repair, replace or correct, at NEL’s sole option and expense at the specified warranty point which is Ex-Works NEL’s Shop (Incoterms 2010), any goods or services not complying with the foregoing. If warranty work is performed by NEL on the Goods then the warranty will be extended under the same time period terms stated above on the replaced or repaired equipment and components only. In no event will NEL be liable for any costs of whatsoever kind for in and out costs including but not limited to, removal, reinstallation, gaining access, inspection, performance testing, labor, equipment rental or transportation expenses beyond the specified warranty point Ex-Works NEL’s Shop (Incoterms 2010), incidental, consequential or third party damages or costs of any kind. No warranty shall apply to any Goods upon which repairs or alterations have been made unless authorized by NEL, nor to Goods which have been subjected to misuse, mishandling or negligent operations. These warranties are contingent upon the product being stored, installed, maintained, and operated in accordance with good operating practices and the instructions contained in the Operating and Maintenance Manual. Equipment not manufactured by NEL is not warranted except insofar as and to the extent Manufacturer(s) warrants it to NEL. Normal wear and tear on product shall not constitute a warranty defect. Use or installation of non-OEM parts will void this warranty.
NEL MAKES NO OTHER WARRANTY OR REPRESENTATION OF ANY KIND WITH RESPECT TO THE EQUIPMENT OR SERVICES OTHER THAN SPECIFIED IN THIS SECTION. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED.
Limitation of Liability: NEL’s entire liability and Buyer’s exclusive remedy shall be as follows: With respect to any claim concerning performance or non-performance to NEL pursuant hereto, or in any other way related to the subject matter hereof or any claim for breach or default by NEL, Buyer’s exclusive remedy shall be the recovery of its direct damages but only to the limit set forth in this paragraph and subject to the remedies for a warranty claim outlined in section 10 above. This limitation shall apply whether or not the alleged breach by NEL is a breach of condition or fundamental term, or a fundamental breach, or the alleged breach is caused by the presence of NEL’s employees or agents on Buyer’s premises. NEL’s liability for damages to Buyer for any cause whatsoever, and regardless of the form of action, whether in contract or in tort including negligence, shall be limited to Buyer’s direct damages and shall not exceed the amount paid by Buyer for the Equipment. In no event will NEL be liable for or Buyer have a remedy for the recovery of any special, indirect or consequential damages even if NEL has been advised of the possibility thereof including, but not limited to, lost profits, lost revenues, inconvenience, loss of time, failure to realize expected savings, or other commercial or economic losses of any kind.
Installation: Unless otherwise specified herein, all Equipment will be installed, erected and started up by and at the expense of Buyer. If the Equipment is to be installed by NEL or its nominee and Buyer delays such installation, all costs, losses and charges attributable to such delay shall be paid by Buyer.
Plans and Drawings: NEL will not supply detailed or shop working drawings of the Equipment. Foundation plans and only those general drawing needed for installation and erection will be supplied.
Intellectual Property: Nothing in the Agreement shall be construed as a grant or assignment of any license or other right to Buyer of any of NEL’s or its affiliates' or suppliers’ intellectual property rights, whether patent, trademark, trade secret, copyright or otherwise. All improvements and developments related to the Equipment or Services arising out of the efforts of NEL and Buyer will be owned exclusively by NEL, and Buyer shall reasonably cooperate with NEL in confirming that result. Buyer shall indemnify and defend NEL from all loss and liability resulting from or related to claims that design elements for the Equipment or Services that were provided by Buyer infringe the intellectual property rights of third parties.
Confidential Information: With respect to confidential information concerning the Equipment, the Services and the transactions subject to the Agreement that Buyer comes to know either through disclosure from NEL or otherwise, Buyer (a) shall not disclose the information to any third party, (b) shall not use the information for any purpose other than evaluation and use of the Equipment, and (c) acquires no ownership, license or other interest in the information.
Failure to Pay: If buyer fails to make payments when due the entire purchase price (or progress payments, as applicable) for all delivered Equipment shall immediately become due and payable. NEL may refuse to perform any other further obligations hereunder and all warranties and obligations regarding the Equipment shall automatically terminate.
Retention of Title and Security Interest: Until the purchase price for the Equipment is paid in full, NEL shall retain all property in, ownership of, and title to the Equipment and Buyer hereby grants to NEL a security interest in the Equipment together with all proceeds therefrom as security for the performance and payment of the said purchase price. Value has been given and the security interest hereby created shall attach to the Equipment when Buyer has rights in the Equipment. Upon delivery to a carrier chosen by the Buyer and until the purchase price for the Equipment is paid in full, the Buyer shall insure and shall keep insured the Equipment against loss or damage by fire and other usual perils to the full insurable value thereof and Buyer hereby assigns to NEL all monies which may become payable under any such policy of insurance.
Documentation and Applicable Rights: At the request of NEL, Buyer will join with NEL in executing such additional security agreements, financing statements for public filing, or other documents to secure NEL’s interest in the Equipment to its satisfaction. Buyer authorizes NEL to file, in jurisdictions where this authorization will be given effect, financing statement(s) signed only by the Buyer. NEL shall have all the rights and remedies allowed by law of the jurisdiction which governs this agreement, and, in those jurisdictions which have adopted a Personal Property Security Act or the equivalent providing for a retention of a security interest to secure payment for goods sold or financed, NEL shall have the rights and remedies of a secured party thereunder. In those provinces which have not adopted a Personal Property Security Act or the equivalent providing for a retention of a security interest to secure payment for goods, sold or financed, legal title with right of possession upon default to all Equipment shall remain in NEL until the full purchase price has been paid to NEL and Buyer shall be liable for any deficiency
Repossession: If Buyer defaults in its performance hereunder or if a petition in bankruptcy shall be filed by or against Buyer or Buyer shall be adjudicated a bankrupt or be or become insolvent or shall have made an assignment for the benefit of creditors or shall take advantage of any law for the benefit of debtors or if any action is commenced against Buyer to cause its assets to be placed under trusteeship or receivership or liquidated for the benefit of creditors or if Buyer voluntarily or by operation of law shall lose control of the operations of its business, then upon any of the foregoing defaults Buyer will, at the request of NEL, assemble the Equipment and make it available to NEL at Buyer’s place of business or at such other place as is designated by NEL which is reasonably convenient. Subject to the provisions of the applicable Personal Property Security Act, any requirements of reasonable notice by one party to the other party shall be met if such notice is mailed by regular post, to the parties’ principal place of business, at least five days before the time of the event of contemplated action set forth in the notice. Buyer agrees to pay all expenses of retaking, holding, preparing for sale, selling and reasonable solicitor’s fees and legal expenses allowed by law incurred by NEL in enforcing any of the rights granted to NEL. Upon any such default, Buyer authorizes NEL to enter upon the premises at any time to repossess the Equipment and hereby waives all rights and claims for trespass or conversion or damages in any manner thereby caused NEL.
No Rejection by Buyer: Buyer must accept all goods tendered under the agreement. Under no circumstances is Buyer permitted to reject goods tendered or to return goods with NEL’s prior written consent.
Entire Agreement and Amendment: This agreement, together with the agreements or other documents to be delivered pursuant hereto, constitute the entire agreement between the parties pertaining to the subject matter hereof and supersede all prior formal and informal agreements, proposals, promises, inducements, representations, conditions, warranties, understandings, negotiations and discussions, whether oral or written, of the parties. No waiver, change, amendment, discharge of, or addition to, any term or condition hereof, shall bind NEL unless made in writing and signed by an aurthorized officer of NEL and, without limitation, no terms or conditions which may be contained in authorized officer of NEL and, without limitation, no terms or conditions which may be contained in Buyer’s order form shall bind NEL unless such order form is signed by an authorized officer of NEL.
Time for Payment of Essence: Time for payment by Buyer shall be of the essence. Net 30 days NEL’s dated invoice.
Rights Cumulative: No right or remedy of NEL hereunder shall be deemed to be exclusive of any other right or remedy hereunder and NEL shall be entitled to exercise such rights or remedies, separately or cumulatively.
No Assignment: Neither this Agreement or any right granted hereby is assignable by Buyer without NEL’s prior written consent.
Severability: Any provision of this agreement which is prohibited or unenforceable in any jurisdiction shall, in such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provision hereof or affecting the validating or enforceability of such provision in any other jurisdiction.
Governing Law: This agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the parties submit to the jurisdiction of the Courts of the Province of Ontario.
Language: The parties have requested and hereby confirm such request that this contract as well as all documents and notice issued thereunder or relating thereto be drawn up in English.
Export Control: Buyer may not export the Equipment into any country that is prohibited or is under sanctions by the Government of Canada. Buyer acknowledges that the export of the Equipment may be subject to export or import control and Buyer agrees that any part of the Equipment, or the components thereof will not be imported or exported (or re-exported from a country of installation) directly or indirectly, unless the Buyer obtains all necessary licenses from Government of Canada and the applicable agency or governmental body as required under applicable law. Without limiting the generality of the foregoing, Buyer agrees that the Equipment may be prohibited for export or re-export to North Korea, Iran, Libya, Syria and Sudan or to any person or entity listed, sanctioned or prohibited under the Special Economic Measures Act, Freezing Assets of Corrupt Foreign Officials Act, Justice for Victims of Corrupt Foreign Officials Act, Criminal Code Part II.1, and the United Nations Act and any regulations or orders adopted thereunder, and all sanctions administered by the United States Treasury’s Office of Foreign Assets Control, as such may be changed from time to time. Buyer acknowledges and agrees that it shall neither undertake nor cause, nor permit to be undertaken, any activity in connection herewith that either is illegal under or would cause NEL to be in violation of any laws in effect in any country. Buyer shall indemnify and hold harmless NEL for Buyer’s failure to comply with this export control clause.
Please contact us if you have any questions or concerns. Our contact details are as follows:
5 Chester Street
You may also reach us through the contact page on our website.
Effective Date: 25th day of January, 2023