Terms of Sale
The following DMF Energy Inc. Alberta, Canada (“DMF”) terms and conditions of sale and those appearing in DMF’s quotations and order confirmations (collectively the “Terms of Sale”) are exclusive and in lieu of all other terms and conditions appearing on Customer’s purchase order or elsewhere and apply to all quotations made and all orders accepted by DMF Energy Inc. for DMF products (“Products”). Customer agrees that DMF’s acceptance of Customer’s order is limited to DMF’s Terms of Sale. Customer shall be deemed to have accepted DMF’s Terms of Sale unless written notice of objection is given by Customer to DMF within 24 hours of receipt of DMF’s order confirmation. Neither DMF’s commencement of performance nor delivery of Products shall be deemed or constitute acceptance of any Customer additional or different terms and conditions. DMF’s failure to object to provisions contained in any order or other writing of Customer shall not be construed as a waiver by DMF of its Terms of Sale or an acceptance of any terms and conditions of Customer, which are hereby rejected by DMF.
1. Performance. Performance of any order received by DMF is expressly conditioned upon acceptance by DMF management.
2. Orders and Cancellations.
a. All orders placed with DMF must be in writing by Customer or in electronic form. All orders should include shipping address, requested delivery dates, quantities and complete description of Products being purchased, as well as Customer’s name, contact name, address, email address, telephone number and fax number. Orders will be a binding contract only when received and accepted by confirmation in writing by DMF.
b. Customer orders requiring an export license will not be accepted until the export license has been obtained. Orders requiring a Letter of Credit will not be accepted until the Letter of Credit is received (unless otherwise negotiated prior to order acceptance) and meets DMF’s standard terms for a Letter of Credit. No production will begin until payments terms are agreed upon.
c. Customer shall have 24 hours from receipt of DMF’s order confirmation to make any corrections or changes. Failure to do so shall constitute acceptance of DMF’s order confirmation.
d. Delivery dates may not be rescheduled without DMF’s written approval.
e. Customer may not cancel any Product order in whole or in part without the written agreement of DMF and on condition of Customer’s payment of DMF’s cancellation charges.
f. If DMF agrees to cancel Customer’s order, DMF may assess Customer cancellation charges of 20% of the contract price for cancellation of any order or part thereof for (i) standard Products that can readily be resold to DMF’s other customers, or (ii) for custom or specially made Products, only if the order is cancelled before DMF begins performance. Once DMF begins performance on a custom or specially made Customer order, DMF’s cancellation charges may include: x) the contract price for all completed Products; and y) with respect to non completed Products, an equitable charge as determined by DMF based upon all costs (including but not limited to cost of materials purchased, labor, storage charges, handling, freight, duties and, taxes, and any destruction or recycling costs) incurred by DMF in performance of Customer’s order to the date of cancellation and that DMF will thereafter reasonably incur as a result of such cancellation, plus a cancellation fee of 20% of the contract price for such Products, not to exceed in total the contract price. Customer shall pay all cancellation charges due within thirty (30) days of invoicing by DMF.
g. DMF’s cancellation charges shall not be deemed DMF’s exclusive remedies in the event of an unauthorized order cancellation by Customer
a. The prices of the Products are those specified on DMF’s quotation or confirmation of Customer’s order or, if no price is so specified, those in DMF’s Price List current at the time of DMF’s acceptance of an order. All prices printed in DMF’s price list or quoted to individual Customers are subject to change without notice.
b. Prices include standard packaging. Extra charges will be added for special packaging and/or for expediting delivery.
c. Prices for Products do not include any federal, provincial or local taxes, or other governmental charges, which, when applicable, will be invoiced additionally.
a. Payment shall be due thirty (30) days after the date of the invoice unless otherwise specified in DMF’s quotation or order confirmation. For orders with multiple delivery dates, DMF may invoice Customer and Customer shall pay for each delivery separately and each delivery shall be considered a separate and individual contract.
b. DMF may charge Customer interest for all late payments computed on a daily basis from the due date until paid in full at the rate of one and one-half percent (1 1/2%) per month or the maximum rate permitted by law, whichever is less.
c. DMF reserves the right to establish and/or change credit and payment terms extended to Customer when, in DMF’s sole opinion, Customer’s financial condition or previous payment record warrants that action. Further, on delinquent account, DMF shall not be obligated to continue performance under any agreement with Customer.
d. DMF retains a security interest in the Products delivered to Customer, and in their accessories, replacements, accessions, proceeds and products, including accounts receivable (collectively, the “Collateral”), to secure payment of all amounts due under this Agreement. If Customer fails to pay any amount when due, DMF shall have the right to repossess and remove all or any part of the Collateral from Customer but not from Customer’s customers. Any repossession or removal shall be without prejudice to any other remedy of DMF hereunder, at law or in equity. Customer agrees, from time to time, to take any act and execute and deliver any document (including, without limitation, financing statements) reasonably requested by DMF to transfer, create, perfect, preserve, protect and enforce this security interest.
e. Customer is responsible for and shall pay all costs, fees and expenses, including reasonable attorneys’ fees and the fees of collection agencies, incurred by DMF in enforcing any of the terms, conditions or provisions hereof or in protecting DMF’s rights herein or with respect to past due Customer accounts.
a. Unless otherwise agreed to in writing by DMF, all prices quoted or printed in DMF’s Price List are F.O.B. DMF’s premises or those of DMF’s supplier or, with respect to imported goods, F.O.B. Canada point of shipment.
b. Customer agrees that all freight, express and delivery charges shall be paid by Customer and shall not be subject to discount.
c. If DMF has agreed with Customer to arrange for shipping of Products, DMF will select the carrier in the absence of specific instructions by Customer and all shipments shall be freight collect, unless otherwise negotiated.
d. In no event shall DMF be liable for any delay in delivery nor shall the carrier be deemed an agent of DMF.
e. Delivery will be deemed complete and risk of loss or damage to the Products will pass to Customer upon delivery to the carrier.
6. Inspection and Acceptance; Returns.
a. Customer shall have the right to inspect the Products at the time and place of delivery before paying for or accepting them.
b. The Products shall be deemed accepted by Customer unless notice of defect or shortage is received within thirty (30) days of shipping and defective Product is returned to DMF within sixty (60) days of shipping.
c. Products must be in their original packaging and be in new condition. No Products may be returned to DMF without DMF’s prior written authorization.
d. In the event that Customer claims that Products do not conform to contract specifications and after inspecting the Products DMF determines that the Products do not conform to the contract, DMF’s sole obligations and Customer’s exclusive remedies with respect to a non-conforming Product shall be, at DMF’s option, repair or replacement of the Product or refund to Customer of the purchase price paid for the Product.
e. Customer shall be responsible for all costs associated with the return of Products if the Products are found to be within specification. Otherwise DMF will bear the return cost.
f. Customer shall be responsible for any damage to returned Products resulting from handling by Customer with less than due care.
7. Ownership of Production Tooling, Materials and Equipment, No license granted.
a. Unless otherwise agreed in writing, all material, equipment, facilities, intellectual property and tooling used in the manufacture of the Products covered by any Customer order shall remain the property of DMF.
b. DMF shall not be responsible for any Customer furnished materials or tooling damaged during processing or manufacturing.
c. DMF’s supply of Products to Customer does not in any way convey or grant to Customer any license or right to make, have made or use the Products or any additional products (whether or not identical to the Products supplied by DMF) coming within past or future patents and/or inventions owned, made or controlled by DMF.
a. DMF warrants to Customer that at the time of delivery all Products will conform to and perform in accordance with the applicable current specifications issued by DMF.
b. Any Products sold by DMF with any additional express warranties shall be subject to the specific terms and conditions of those warranties. The duration of any Products warranty given by DMF shall be limited to the applicable warranty duration stated by DMF. If no warranty duration is specified by DMF then the warranty duration shall be thirty (30) days from the date of shipping to Customer.
c. Unless otherwise agreed to in writing by DMF, no warranty shall extend to or be for the benefit of any third party.
d. No warranty shall apply to any Product that is subject to misuse, abuse, accident, disaster, or repair by anyone other than DMF, or that has been used contrary to current instructions.
e. DMF’S ENTIRE RESPONSIBILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY BREACH OF WARRANTY IS LIMITED, AT DMF’S OPTION, TO REPAIR OR REPLACEMENT OF THE PRODUCTS OR REFUND OF THE PURCHASE PRICE PAID FOR THE PRODUCTS THAT ARE THE SUBJECT OF THE WARRANTY CLAIM.
f. Customer will be deemed to have waived any warranty claim unless written notice of such claim is given to DMF promptly but in no event later than thirty (30) days from date of discovery of such breach of warranty.
g. THE FOREGOING WARRANTIES ARE THE SOLE WARRANTIES, EXPRESS OR IMPLIED, GIVEN BY DMF IN CONNECTION WITH THE PRODUCTS, AND DMF DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
9. Assignment. Customer’s purchase order shall not be assigned in whole or in part by either party without the written consent of the other party, except that DMF may assign its rights, liabilities and obligations arising out of Customer’s purchase order to one or more of its subsidiary or affiliated companies.
10. Statute of Limitations. No claim or cause of action by Customer arising from this Agreement may be brought at any time more than twelve (12) months after the facts occurred upon which the claim or cause of action arose.
11. Export Control. Customer shall comply with all applicable Canadian. export laws, regulations and treaties relating to export or re export of the Products. Customer will defend, indemnify and hold DMF harmless for any claims, penalties, fines, damages or costs to DMF arising from Customer’s failure to comply with this provision.
12. Limitations of Liability. DMF’S ENTIRE AND AGGREGATE LIABILITY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT, WHETHER FOR INFRINGEMENT, BREACH OF WARRANTY OR CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE SHALL NOT EXCEED THE PURCHASE PRICE TO DMF FOR THE PRODUCTS PURCHASED UNDER THIS AGREEMENT THAT CREATE SUCH LIABILITY. DMF SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES FOR ANY CLAIM MADE IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, THE PRODUCTS, OR THE SALE, INSTALLATION, MAINTENANCE, USE, PERFORMANCE OR NON-PERFORMANCE OF THE PRODUCTS, OR OTHERWISE.
13. Governing Law. The construction, interpretation and performance of this Agreement and all transactions under it shall be governed by the laws of the Province of Alberta Canada excluding any of its conflict of laws provisions. DMF and Customer specifically exclude the application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement.
14. Choice of Forum. Any and all claims or actions challenging the validity, interpretation or performance of this Agreement shall be brought in the state or federal courts located in Alberta, Ontario or Halifax Regional Municipality within the Province of Nova Scotia and the parties hereby consent to the personal jurisdiction and venue of such courts with respect to such claims or actions. Notwithstanding the foregoing, DMF may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged or anticipatory breach of DMF’s proprietary rights.
15. Force Majeure. Except for the payment of money due and owing, neither party shall be held responsible for any delay or failure in performance of any part of this Agreement to the extent that delay or failure is caused by causes beyond its reasonable control (“Force Majeure Conditions”), including, but not limited to, fire, flood, explosion, war, strike, embargo, government requirement, civil or military authority, act of God, act or omission of carriers or other similar causes and, with respect to DMF, inability to reasonably obtain necessary labor, materials, components or manufacturing facilities. If any Force Majeure Condition occurs, the party delayed or unable to perform (“Delayed Party”) shall give immediate notice to the other party (“Affected Party”), and the Delayed Party, upon giving prompt notice to the Affected Party, shall be excused from performance under this Agreement for the duration of the Force Majeure Condition; provided, however, that the Delayed Party shall take all reasonable steps and cooperate with the Affected Party to avoid or remove the cause of nonperformance and shall resume performance hereunder with dispatch when the cause is removed. If the Delayed Party cannot within sixty (60) days remove the cause of nonperformance, the Affected Party may terminate this Agreement. If Force Majeure Conditions cause shortages in DMF’s supply of Products or materials necessary to produce the Products, DMF may, without obligation to obtain similar products or such materials from other sources, first satisfy its own requirements and the requirements of its divisions, subsidiaries and affiliates for such materials and Products and then allocate the remainder among its customers in a manner and amount that, in DMF’s sole judgment, is fair and reasonable.
16. Non-Waiver. No course of dealing or failure of either party to strictly enforce any term, right or condition of this Agreement shall be construed as a waiver of that term, right or condition.
17. Entire Agreement. DMF’s Terms of Sale shall constitute the entire agreement (the “Agreement”) between the parties with respect to the sale of the Products and shall not be modified or rescinded, except by a writing signed by DMF and Customer. The provisions of this Agreement supersede all prior oral and written communications, agreements, and understandings of the parties with respect to the subject matter of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable by a court or other body of competent jurisdiction, such invalidity of unenforceable shall not affect the validity or enforce-ability of this Agreement or of any other provision of this Agreement and the invalid or unenforceable provision shall be replaced by a legally valid and enforceable provision coming closest to achieving the same result (to the maximum legal extent) as the invalid or unenforceable provision.